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A  HISTORY  OF  THE    AMERICAN    NATION.     By 

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D.    APPLETON    AND    COMPANY 
NEW  YORK  BOSTON  CHICAGO 


TWENTIETH   CENTURY   TEXT-BOOKS 


THE  GOVERNMENT 


OF  THE 


UNITED  STATES 


BY 


BERNARD    MOSES,  Ph.D.,   LL.D. 

PROFESSOR   OF    HISTORY    AND   POLITICAL  SCIENCE 
IN   THE   UNIVERSITY   OF   CALIFORNIA 


• .'  .; 


NEW   YORK 
D.   APPLETON   AND   COINIPANY 

1910 


COPTKIGHT,   1906,  BT 

D.  APPLETON  AND  COMPANY 


C»       ^        (        k     1    u 


^         I      c 

*     t  t  t 


// 


PREFACE 


The  main  purpose  of  this  book  is  to  show  what  the  Gov- 

■+-ernment  of  the  United  States  is,  by  giving  a  sketch  of  its 

I  organization  and  the  general  methods  of  its  working.     It 

_y  deals  not  only  with  the  central,  or  Federal  government,  but 

I   also  with  the  State,  Territorial,  and  local  governments;  and 

^  all  of  these  taken  together  make  up  the  Government  of  the 

United  States.     Students  who  undertake  the  study  of  this 

Government  should  keep  in  mind  the  fact  that  each  of  the 

governments,  local.  State,  and  Federal,  exercises  some  part 

of  the  political  power  of  the  nation.     This  is  the  territorial 

; distribution  of  power.     He  should  also  keep  in  mind  the  fact 

.  \  that  in  the  town  or  city  government,  as  well  as  in  the  State 

\j  or   Federal   government,   the    power  which   each   holds  is 

divided  among  the  legislative,  the  executive,  and  the  judicial 

departments.     This  is  a  distribution  according  to  the  kind 

of  power  to  be  exercised.     Thus,  in  order  to  understand  how 

this  nation  is  governed,  one  must  give  attention  to  both  of 

these  forms  of  distribution. 

>J^      The  topics  here  treated,  concerning  the  organization  and 

vi  powers  of  the  Government,  constitute  a  general  subject  by 

^  themselves.     If  properly  comprehended,  they  show  us  what 

Tjthe  Government  is.     They  are  sufficient  to  occupy  the  student 

^^uring  the  time  usually  allotted  to  this  study,  and  they  must 


111 


('■■•■J  I 


iV. 


iv  PREFACE 

be  understood  before  he  can  give  his  attention  most  profit^ 
ably  to  the  questions  that  arise  in  the  course  of  the  Govern- 
ment's practical  work. 

It  will  be  observed  that  the  book  is  divided  into  a  series 
of  numbered  sections.  In  each  of  these  sections  a  more  or 
less  distinct  subject  is  treated,  and  it  is  believed  that  from 
this  discussion  of  the  various  institutions  of  the  Government 
a  knowledge  of  the  whole  as  well  as  of  the  individual  parts 
will  be  easily  acquired.  The  formal  topics  following  each 
section  are  intended  to  assist  the  student  in  analyzing  the 
text,  and  in  finding  out  what  are  the  essential  points.  Then 
by  making  use  of  the  references  to  parts  of  other  books,  which 
are  printed  immediately  below  the  topics,  the  student  will,  it 
is  expected,  acquire  the  habit  of  getting  information  from 
many  sources.  Through  this  practice  he  may,  moreover, 
gradually  prepare  himself  for  investigating  the  subjects  that 
are  placed  at  the  end  of  the  several  chapters.  By  reading 
carefully  the  documents  and  passages  cited,  the  student  may 
acquire  a  broader  view  than  any  single  volume  wull  convey; 
and  under  proper  guidance  he  may  receive,  by  the  use  of  this 
material,  training  in  the  process  of  verifying  statements  con- 
cerning historical  and  political  affairs.  It  will  be  generally 
expedient,  however,  for  him  to  omit  these  subjects  for  ad- 
vanced study  until  after  thoroughly  mastering  the  rest  of 
the  volume.  Bernard  Moses. 

University  of  California, 
January,  1906. 


CONTENTS 


CHAPTER  PAGE 

I. — The  Colonies 1 

II. — Union  and  Independence 21 

III. — Under  the  Articles  of  Confederation         ...     39 

IV. — The  Federal  Legislature 58 

V. — What  Congress  Can  Do 103 

"VI. — ^The  Organization,  Powers,  and  Duties  of  the  Fed- 
eral Executive 146 

VII. — The  Federal  Courts 195 

VIII. — Rights  and  Privileges  op  Citizens         ....  216 

IX. — ^The  Continental  Territories 249 

X. — ^The  Insular  Dependencies 268 

XI. — ^The  Government  of  the  States 281 

Xll. — Local  Government  in  the  United  States     .        .        .   308 

Xlll. — The  Individual  Citizen  in  Relation  to  the  Govern- 
ment         324 

XIV. — International  Relations 358 

APPENDIX 

I.  An  Ordinance  for  the  Government  of  the  Territory  of 

THE  United  States  Northwest  of  the  River  Ohio  .   371 

II.  Articles  of  Confederation 377 

III.  Constitution  of  the  United  States  of  America         .        .   385 

IV.  The  President's   Instructions  to  the  Board  of  Com- 

missioners of  the  Philippine  Islands  .        .        .   402 

V.  An  Act  Temporarily  to  Provide  for  the  Administra- 
tion OF  the  Affairs  of  Civil  Government  in  the 
Philippine  Islands,  and  for  Other  Purposes    .       .   409 

INDEX 415 


THE   GOVERNMENT  OF  THE 
UNITED   STATES 


CHAPTER  I 

THE    COLONIES 

I.  The  English  Colonies  in  America.— The  fact  that 
several  nations  exist  in  the  world  is  almost  as  apparent  as 
the  existence  of  the  human  race  itself.  Frenchmen  learn 
very  early  that  they  are  not  Englishmen;  the  Japanese, 
that  they  are  not  Russians;  and  the  Spaniards,  that  they  are 
not  Germans.  Our  traditions,  our  love  of  country,  and  our 
reading  in  history  tend  to  keep  clear  in  our  minds  the  fact 
that  the  members  of  our  nation  constitute  a  large  group  by 
themselves,  and  that  they  are  in  some  respects  separate  and 
distinct  from  those  of  other  nations.  The  nation  may  be 
defined  as  a  large  independent  group  of  persons  possessing  a 
definite  territory  and  a  supreme  government.  By  a  supreme 
government  is  meant  a  government  that  is  not  under  any 
other  government.  The  government  of  a  city  in  the  United 
States  is  under  the  State  government.  The  government  of 
a  State  is  limited  by  the  authority  which  the  Constitution 
of  the  United  States  confers  upon  the  Federal  Government. 
The  City  of  New  York  is  a  large  group  of  persons  and  has  a 
definite  territory — that  is  to  say,  we  know  its  boundaries; 
but  it  is  under  the  government  of  the  State  of  New  York. 
It  is  therefore  not  a  nation.  The  State  of  New  York  has 
also  a  definite  territory;  but  it  is  not  a  nation,  because  its 

1 


2  THE  GOVERNMENT  OF  THE  UNITED    STATES 

government  is  under  the  superior  authority  of  the  United 
States.  The  United  States  has  a  definite  territory,  but  its 
Government  is  not  under  any  superior  power;  hence  we  call 
the  United  States  a  nation.  For  the  same  reasons  we  call 
France,  Italy,  or  Japan  a  nation. 

The  colonies  that  were  united  to  form  the  United  States 
were  at  first  under  the  government  of  England.  They  did 
not  then  constitute  a  separate  nation;  they  were  rather  a 
part  of  the  English  nation.  After  they  had  declared  their 
independence  and  maintained  it,  and  formed  a  government 
for  themselves  that  was  not  under  any  other  government, 
then  they  became  the  nation  that  we  call  the  United  States 
of  America. 

The  English  Government  granted,  in  large  measure, 
to  its  American  colonies  the  right  to  govern  themselves. 
These  colonies  were  often  small  in  the  beginning,  but  they 
grew  strong  by  being  compelled  to  rely  upon  themselves. 
The  colonists  found  along  the  Atlantic  coast  only  a  sparse 
population  of  savages,  who  they  expected  would  disap- 
pear, and  who  have  almost  entirely  disappeared.  From 
these  Indians  they  kept  aloof.  They  drove  them  back 
into  the  wilderness,  and  maintained  the  European  standard 
of  civilization.  The  Spaniards,  who  settled  Mexico  and 
South  America  intermarried  with  the  Indians,  and  as  a 
consequence  their  descendants  fell  below  the  European 
standard.  The  colonies  of  Spain  were  more  completely 
dependent  upon  the  mother  country  than  were  the  colonies 
of  England.  The  most  noticeable  points  of  contrast  be- 
tween the  relations  of  these  two  nations  with  their  colonies 
are  the  following: 

1.  The  Spanish  colonists  might  not  trade  with  the  mer- 
chants of  foreign  nations.  The  English  colonists  were  free 
to  trade  in  certain  wares  with  any  nation. 

2.  For  a  long  time  Spain  required  all  trade  with  America 
to  pass  through  a  single  Spanish  port.     England  allowed 


THE  COLONIES  3 

all  her  ports  to  have  equal  privileges  with  reference  to  the 
trade  with  America. 

3.  Spanish  colonies  might  not  trade  with  one  another. 
English  colonies  enjoyed  full  freedom  in  their  intercolonial 
trade. 

4.  Spain  laid  special  stress  on  getting  gold  and  silver 
from  America.  England  laid  special  stress  on  getting  raw 
material  for  her  manufactures. 

5.  Spain  excluded  from  her  colonies  all  foreign  manu- 
factures. England  excluded  from  her  colonial  markets  such 
foreign  manufactures  as  were  in  competition  with  her  home 
manufactures. 

6.  The  traditions  of  the  Spanish  nation  and  the  state  of 
Spanish  society  in  America  favored  the  application  of  the 
principles  of  absolutism  in  the  government  of  the  Spanish 
colonies.  The  traditions  of  the  English  nation  and  the  state 
of  English  society  in  America  encouraged  in  the  English 
colonies  the  development  of  popular  rule. 

Topics. — Definition  of  a  nation. — Why  the  State  of  New  York 
may  not  be  called  a  nation. — How  a  colony  may  become  a  nation. — 
Attitude  of  the  English  Government  toward  its  colonists. — Spanish 
system  contrasted  '^vith  the  English  sj-stem. 

References. — Hinsdale,  American  Government,  2C-7G;  Froth- 
ingham,  Rise  of  the  Republic,  1-157. 

2.  The  Supremacy  of  the  King.— The  settlers  in  Amer- 
ica and  their  descendants,  whether  English,  French,  or 
Spanish,  regarded  the  king  as  the  sole  possessor  of  the 
supreme  power  over  them;  and  all  the  colonizing  nations 
in  Europe  participated  in  the  view  that  American  colonies 
were  possessions  of  the  king.  This  view  was  so  firmly  fixed 
in  the  minds  of  the  Spanish-Americans  that  they  considered 
themselves  no  longer  bound  to  Spain  after  Napoleon  had  set 
aside  the  legitimate  Spanish  king.  The  French  colonists. 
as  the  subjects  of  an   absolute   monarch,   recognized,   of 


4  THE  GOVERNMENT  OF  THE  UNITED  STATES 

necessity,  the  supremacy  of  the  king  alone.  The  EngUsh 
colonists  also  recognized  no  supreme  authority  over  them 
but  that  of  the  king. 

The  rapid  growth  of  the  power  and  prestige  of  the 
Parliament,  however,  led  to  a  modification  of  this  idea  in 
England,  Yet  the  Americans  adhered  to  the  thought  that, 
as  they  were  not  represented  in  this  body,  it  had  no  power 
over  them.  While,  therefore,  it  was  consistent  with  the 
later  English  view  that  the  Parliament  should  have  part 
in  the  government  of  the  colonies,  the  colonists  them- 
selves protested  against  parliamentary  interference  in  their 
affairs. 

Topics. — American  settlers'  view  of  the  king, — Attitude  of 
the  English  settlers  toward  the  Parliament. — English  opinion  as 
to  the  Parliament's  relation  to  colonial  affairs. 

References. — Miller,  Lectures  on  the  Constitution,  36,  75. 

3.  The  Colonial  Governments. — At  the  close  of  the 
period  of  dependence,  there  were  three  classes  of  English 
colonies:  (1)  The  republican  colonies;  those  whose  governors, 
as  well  as  other  officers,  were  elected  by  the  people,  Con- 
necticut and  Rhode  Island  belonged  to  this  class,  (2)  The 
proprietary  colonies;  those  whose  governors  were  appointed 
by  hereditary  proprietors,  Maryland,  Pennsylvania,  and 
Delaware  belonged  to  this  class,  (3)  The  royal  colonies; 
those  whose  governors  were  appointed  by  the  crown.  This 
class  embraced  Georgia,  the  two  Carolinas,  Virginia,  New 
Jersey,  New  York,  New  Hampshire,  and  Massachusetts 
after  1692.  During  the  colonial  period  many  changes 
were  made  in  the  governments  of  the  colonies.  Some  of 
these  governments  belonged  to  different  classes  at  difTerent 
times.  Massachusetts,  for  example,  prior  to  1692,  elected 
her  governor,  deputy  governor,  the  assistants,  and  the 
members  of  the  house  of  deputies.  After  1692,  under 
the  new  charter,  the  governor  and  the  lieutenant  governor 


THE  COLONIES  5 

were  appointed  by  the  crown,  while  the  members  of  the 
general  court  continued  to  be  elected  by  the  people. 

In  spite  of  the  observed  differences  relating  to  the  gov- 
ernor, the  several  colonies  were  in  many  respects  similar. 
They  were  all  subordinate  to  the  English  crown  and  were 
dependent  parts  of  the  English  nation.  They  all  had  rep- 
resentative legislative  assemblies,  and  these  assemblies 
controlled  the  pubHc  funds  and  directed  their  expenditure. 
In  each  colony  there  was  a  small  body,  called  the  council, 
the  assistants,  or  the  magistrates,  which  in  relation  to  the 
assembly  was  an  upper  house,  and  in  relation  to  the  gov- 
ernor was  a  cabinet  or  ministry.  It  did  not  take  part  in 
legislation  in  some  of  the  colonies.  In  Pennsylvania,  it 
performed  only  executive  duties.  In  some  cases  the  mem- 
bers of  this  council  were  elected  by  the  people;  in  others, 
by  the  assembly;  in  still  others,  they  were  appointed  by  the 
king  or  the  lords  proprietary. 

It  thus  appears  that  the  form  of  most  of  the  colonial 
governments  resembled  that  of  the  Government  of  Eng- 
land. The  king,  the  lords,  and  the  commons  were  repro- 
duced on  a  small  scale  in  the  governor,  the  council,  and 
the  assembly.  The  powers  of  the  commons  in  England 
and  the  powers  of  the  assembly  in  the  colonies  were  derived 
from  the  people.  The  king  in  England  received  his  power 
by  hereditary  right,  and  the  governor  in  the  colonics  re- 
ceived his  power  in  most  cases  by  royal  appointment. 
These  facts  helped  to  make  the  assemblies  antagonistic  to 
the  governors  appointed  by  the  king,  as  the  House  of  Com- 
mons was  antagonistic  to  the  crown.  It  was  the  antago- 
nism, in  both  cases,  between  royal  power  and  popular 
power. 

Although  the  government  in  England  determined  what 
the  colonial  governments  might  or  might  not  do,  yet 
"practically  each  colony  was  a  self-governing  common- 
wealth, left  to  manage  its  own  affairs  with  scarcely  any 


6     THE  GOVERNMENT  OF  THE  UNITED  STATES 

interference  from  home."^  Through  their  representatives 
the  colonists  made  their  laws  and  voted  their  taxes;  but  the 
British  Parliament  "  could  overrule  such  laws  as  the  colonies 
might  make."  The  colonies  insisted,  however,  that  they 
should  be  free  from  all  taxes  except  those  levied  by  their 
own  authority.  Still,  in  comparison  with  the  Spanish  colo- 
nists, the  English  colonists  in  this  respect  enjoyed  a  large 
measure  of  freedom. 

Topics. — The  classes  of  English  colonies. — The  assembly  and 
council,  assistants,  or  magistrates. — General  form  of  colonial  gov- 
ernments.— Relation  of  royal  to  popular  power. — Self-government 
in  the  colonics. 

References. — Fiske,  Civil  Government,  146-165;  Hart,  Actual 
Government,  41-45;  Macy,  Our  Government,  28. 

4.  Local  Government  in  New  England. — The  primary 
local  organizations  in  the  governments  of  the  New  England 
colonies  were  towns  or  townships.  The  early  New  England 
town  was  a  subordinate  political  society  within  a  colony. 
It  was  a  little  republic,  but  limited  in  its  action  by  the  supe- 
rior authority  of  the  colony  of  which  it  was  a  part.  The 
territory  of  the  colony  was  divided  up  into  townships. 
This  was  a  revival  of  the  condition  of  early  England,  when 
"the  whole  country  was  cut  up  into  vills  or  towns,"  and 
"  the  law  assumed  that  every  acre  of  land  lay  in  some  town, 
some  villa." ^ 

The  most  important  feature  of  the  political  organization 
of  the  town  was  the  assembly  of  freemen,  or  qualified  voters, 
in  a  town  meeting.  This  meeting,  embracing  all  the  voters 
of  the  town,  was  held  at  least  once  a  year,  in  the  spring. 
It  might  be  called  at  other  times  by  the  selectmen,  and  must 
be  called  by  them  on  the  demand  of  ten  voters.  This 
assembly  performed  the  functions  of  both  the  electors  and 

'  Bryce,  Am.erican  Commonwealth,  i,  16. 
'  Maitland,  Township  and  Borough,  8. 


THE  COLONIES  7 

the  legislature  in  a  representative  republic:  (1)  It  elected 
the  officers  of  the  township.  (2)  It  made  the  laws,  voted 
the  taxes,  and  appropriated  to  various  purposes  the  sums 
raised  by  taxation.  The  assembly  was  convened  in  the 
central  village  of  the  township,  and  hold  its  sessions  in 
the  town  hall,  the  church,  or  the  schoolhouse.  The  officers 
elected  by  the  town  meeting  were  the  selectmen,  a  town 
clerk,  a  treasurer,  assessors,  a  collector,  a  constable,  and 
several  minor  officers.  The  number  of  the  selectmen  was 
three,  five,  seven,  or  nine,  depending  upon  the  size  of  the 
town  and  the  amount  of  its  public  business.  The  selectmen 
constituted  the  executive  of  the  town.  The  town  clerk  kept 
the  town's  public  records  of  whatever  sort.  The  treasurer 
received  all  money  gathered  from  the  taxpayers,  or  obtained 
by  the  town  from  other  sources;  and  from  these  public  funds 
he  paid  the  public  expenses  of  the  town.  The  constable's 
functions  in  relation  to  the  town  were  in  some  respects 
similar  to  the  functions  of  a  sheriff  in  relation  to  the  county. 
Among  the  other  officers  were  the  assessors  of  the  taxes  and 
the  overseers  of  the  poor.  The  overseers  of  the  poor 
superintended  whatever  public  provision  was  made  for  the 
maintenance  of  the  paupers  of  the  town.  There  were  also 
school  committees,  surveyors  of  highways,  poundkeepers, 
inspectors  of  lumber,  measurers  of  wood,  and  sealers  of 
weights  and  measures. 

The  county,  as  a  political  entity  larger  than  the  town, 
came  into  existence  through  the  cooperation  of  several 
causes: 

1.  The  county  had  existed  in  England,  and  the  concep- 
tion and  traditions  of  it  were  brought  to  America  by  the 
English  colonists. 

2.  It  was  a  convenient  organization  for  supplementing 
both  the  work  of  the  town  and  the  work  of  the  central  gov- 
ernment of  the  colony. 

3.  It  was  the  result  of  the  first  step  in  the  normal  process 


8     THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  social  growth,  by  which  the  primary  poHtical  bodies  were 
united  and  finally  amalgamated  into  the  nation. 

The  shire,  or  county,  in  England  was  not  one  of  a  number 
of  units  into  which  the  nation  had  been  divided;  it  was, 
instead,  but  one  of  the  constituent  elements  that  were 
brought  together  to  form  the  nation.  Through  the  shire- 
mote,  or  county  court,  it  exercised  both  legislative  and 
judicial  power.  The  most  important  single  officer  of  the 
county  was  the  sheriff.  At  first  he  was  elected  by  the 
people,  but  later  he  was  appointed  by  the  king.  He  was 
the  agent  of  the  central  government  in  the  county.  He 
was  the  executive  officer  of  the  courts;  he  summoned  juries 
and  executed  judicial  decrees.  Other  officers  of  the  county 
in  England  were  the  coroners  and  the  justices  of  the  peace. 
A  coroner  formerly  exercised  extensive  powers,  but  later 
his  most  prominent  function  was  to  summon  a  jury  for  de- 
termining the  cause  and  manner  of  mysterious  deaths.  He 
held  and  exercised,  also,  certain  police  powers.  Justices  of 
the  peace  were  administrative  and  judicial  officers.  After 
13G2,  they  were  required,  in  an  English  county,  to  hold 
four  meetings  a  year.  When  they  were  organized  in  these 
meetings,  they  constituted  the  Court  of  Quarter  Sessions. 

These  essential  features  of  the  county  were  brought  to 
New  England  by  the  settlers  of  Massachusetts.  The  four 
groups  into  which  the  towns  of  Massachusetts  were  gathered 
became  in  1643  the  counties  of  Suffolk,  Norfolk,  Essex,  and 
Middlesex.  They  were  organized  as  judicial  districts,  with 
the  sheriff  as  the  chief  executive  officer,  and  with  a  jail  and  a 
court-house  as  the  principal  public  buildings.  The  office  of 
the  justice  of  the  peace  had  already  been  established,  and 
before  the  close  of  the  seventeenth  century  these  officers 
were  organized  in  a  body  known  as  the  Court  of  General 
Sessions.  This  court  could  try  both  civil  and  criminal 
cases;  namely,  civil  cases  involving  not  less  than  forty  shil- 
lings, and  criminal  cases  not  involving  a  penalty  of  death 


THE  COLONIES  9 

or  banishment.  The  sheriff  and  the  justices  were  appointed 
by  the  governor.  In  addition  to  this  judicial  organization, 
the  county  had  also  a  military  organization.  Each  town 
furnished  a  company,  and  the  several  companies  were 
united  and  formed  a  county  regiment. 

In  New  England,  the  county  was  less  important  than  the 
town.  It  was  in  the  town  that  the  inhabitants  were  trained 
for  self-government.  It  was  the  towns,  moreover,  that 
maintained  and  developed  the  public  schools.  By  a  general 
law  of  Massachusetts,  passed  in  1647,  it  was  ordered,  "that 
every  township  in  this  jurisdiction,  after  the  Lord  hath 
increased  them  to  the  number  of  fifty  householders,  shall 
then  forthwith  appoint  one  within  their  town  to  teach  all 
such  children  as  shall  resort  to  him,  to  write  and  read." 
The  wages  of  the  teachers  were  paid  either  by  the  p^irents 
or  masters  of  the  children,  or  by  the  inhabitants  in  general, 
as  iinight  be  determined  by  the  authorities  of  the  town. 
And  it  was  further  ordered,  "that  when  any  town  shall 
increase  to  the  number  of  one  hundred  families  or  house- 
holders, they  shall  set  up  a  grammar  school,  the  master 
thereof  being  able  to  instruct  youth  so  far  as  they  may  be 
fitted  for  the  university."  The  New  England  town  elicited 
the  admiration  of  Jefferson.  "Those  wards,"  he  said, 
"called  townships  in  New  England  are  the  vital  principle 
of  their  governments,  and  have  proved  themselves  the 
wisest  invention  ever  devised  by  the  wit  of  man  for  the  per- 
fect exercise  of  self-government,  and  for  its  preservation." 

Topics. — Character  of  the  town  in  New  England. — The  assembly 
of  freemen. — Officers  of  the  town. — The  county  and  its  origin  in 
New  England. — Origin  and  status  of  the  county  in  England. — Offi- 
cers of  the  English  county. — The  first  counties  in  Massachusetts. — 
The  Court  of  General  Sessions.— Military  affairs  of  the  county. — 
Public  schools  in  Massachusetts. 

References. — Maitland,  Township  and  Borough,  8;  Freeman, 
Growth  of  the  English  Constitution,  Chap.  I;  Fiske,  Civil  Government, 
2 


10         THE  GOVERNMENT  OF  THE  UNITED  STATES 

16-47;  Ford,  American  Citizen's  Manual,  Part  I,  56-61;  Hart, 
Practical  Essays,  133-147;  Hart,  Actual  Government,  4:4:;  Hinsdale, 
American  Government,  38-40;  Macy,  Our  Government,  10-14;  De 
Toqueville,  Democracy  in  America,  i,  73-103;  Bryce,  American 
Commonvoealth,  i,  561-592;  Levermore,  The  Town  and  City  Govern- 
ment of  New  Haven,  in  Johns  Hopkins  University  Studies,  Fourth 
Series;  Channing,  The  Town  and  County  in  Massachusetts. 

5.  Local    Government   in   the    Southern    Colonies. — In 

studying  local  government  in  the  United  States,  one  should 
keep  in  mind  the  meaning  of  the  terms  used  to  designate  the 
various  local  divisions  or  institutions.  He  should  remember 
that  a  parish  was  originally  a  certain  district  in  which  an 
ecclesiastic  had  charge  of  the  spiritual  interests  of  the  in- 
habitants. At  first,  in  New  England,  the  parish  was  the 
same  as  the  town.  When  the  inhabitants  of  the  district  in 
question  were  acting  in  civil  or  political  matters,  they  were 
thought  of  as  comprising  a  town;  when  they  were  acting  as 
a  body  in  religious  matters,  they  were  thought  of  as  com- 
prising a  parish.  In  some  places  districts  of  this  kind 
became  generally  known  as  parishes;  in  other  places,  as 
towns.  In  Louisiana,  a  district  for  merely  civil  and  political 
purposes  came  to  be  designated  a  parish. 

A  hundred  was  composed  of  a  number  of  townships, 
and  formed  part  of  a  shire  or  county.  In  early  England 
every  freeman  was  required  to  be  enrolled  in  a  hundred; 
and  the  members  of  a  hundred,  or  the  inhabitants  of  a 
district  known  as  a  hundred,  held  meetings  at  times  deter- 
mined by  custom  or  law.  And  the  term  court,  as  applied 
to  early  local  institutions  in  the  United  States,  does  not 
always  mean  a  judicial  body.  It  is  sometimes  applied  to  a 
body  having  power  to  make  laws  as  well  as  to  try  persons 
for  the  violation  of  law. 

In  the  southern  colonies  the  county  overshadowed  the 
parish,  the  hundred,  and  the  town.  In  1634,  eight  shires 
were   created  in   Virginia.     After   1G43,   they  were  called 


THE  COLONIES  11 

counties;  and  at  this  date  they  were  thirteen  in  number. 
Their  officers  were  Heutenants,  sheriffs,  sergeants,  and 
baihffs.  Under  these  officers  it  was  proposed  to  make  the 
government  of  a  colonial  county  like  that  of  a  shire  in 
England.  In  Virginia  the  counties  were  original  groups, 
while  in  New  England  they  were  formed  by  the  union  of 
towns.  The  lieutenant  was  chief  of  the  militia  in  the 
Virginia  county,  and  in  this  position  he  became  especially 
prominent  by  the  long-continued  hostilities  with  the  Indians 
and  by  his  duty  of  directing  the  police  supervi-sion  of  the 
slaves.  The  chief  judicial  authority  in  the  county  was 
exercised  by  the  commissioners  of  the  county  courts.  These 
commissioners,  later  called  justices  and  magistrates,  varied 
in  number  at  different  periods.  From  the  county  court 
certain  cases  might  be  appealed  to  the  general  court.  This 
latter  body  at  first  met  in  March,  June,  September,  and 
November,  when  it  was  called  the  quarterly  court.  Be- 
tween 1659  and  1684  there  was  no  June  session,  and  the 
name  "quarterly  court"  appeared  to  be  inappropriate. 
It  was  then  called  the  general  court.  After  1684,  it  met 
in  April  and  October.  An  important  function  of  the  county 
court  was  levying  the  county  taxes.  The  sheriff  was  the 
executive  officer  of  the  county  court,  and  at  the  same  time 
the  executive  officer  of  the  county.  He  was  appointed  by 
the  governor  from  a  list  of  three  persons  nominated  by  the 
justices.  His  duties  ranged  from  ducking  a  witch  to  carry- 
ing out  the  decrees  of  the  governor. 

In  Maryland  the  local  government  was  nearly  like  that 
of  Virginia.  The  hundred  was  recognized  at  one  time  in 
the  election  of  members  of  the  assembly.  Later,  the  as- 
sembly was  composed  of  representatives  of  the  counties. 
The  hundred  was  employed  in  the  fiscal  and  the  military 
administration  of  the  colonies.  Taxes  were  levied  and 
collected  in  the  hundred;  and  the  hundreds  were  the  fiscal 
districts  in  the  counties.     They  were  also  military  districts, 


12         THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  which  the  "trained  bands"  of  the  local  mihtia  were 
organized.  Several  hundreds  were  sometimes  united  to 
constitute  a  parish  in  Maryland,  but  in  old  England  the 
hundred  in  many  cases  embraced  several  parishes.  In  the 
course  of  time  the  boundaries  of  hundreds  throughout 
Maryland,  "by  vacating  old  roads,  opening  new  ones,  and 
other  causes,  were  in  a  great  measure  obliterated  and  for- 
gotten"; and  the  hundred  ceased  to  be  recognized  in  the 
administration  of  public  affairs.  The  term  "county" 
appears  to  have  been  used  for  the  first  time  in  Maryland  in 
1638.  The  first  district  of  Maryland  to  receive  this  desig- 
nation and  to  exercise  the  powers  indicated  by  it  was  St. 
Mary's  County.  The  county  here  was  at  first  a  judicial 
district  in  which  taxes  were  levied  and  elections  were  held. 
It  was  from  the  counties  that  burgesses,  or  members  of  the 
local  legislature,  were  sent  to  serve  in  the  assembly,  the 
number  to  be  sent  from  each  county  varying  from  one  to 
four.  The  central  feature  of  the  county  organization  was  a 
judicial  body  called  the  county  court.  It  was  composed 
of  commissioners  appointed  by  the  governor.  The  county 
court  was  therefore  not  a  representative  body;  nor  was  it 
a  democratic  assembly;  and  its  functions  were  never  legis- 
lative. The  sheriff  was  the  most  important  single  officer  of 
the  county  in  Maryland  as  well  as  in  Virginia.  He  was 
appointed  by  the  governor;  but  his  original  independence 
was  ultimately  lost,  and  he  fell  under  the  direction  of  the 
assembly,  although  he  continued  to  be  appointed  by  the 
governor.  The  sheriff's  duties  were  similar  to  those  per- 
formed by  the  sheriffs  of  the  English  shire.  The  county 
had  other  officers  in  addition  to  the  sheriff  and  the  com- 
missioners who  made  up  the  county  court.  The  most 
conspicuous  of  these  were  the  coroner  and  the  commander 
of  the  militia. 

These  were  the  typical  local  institutions  of  the  southern 
colonies.     The  county  was  the  effective  unit.     The  inhabit- 


THE  COLONIES  13 

ants  lived  scattered  on  large  plantations.  The  extent  of 
the  plantations,  and  the  comparatively  few  persons  occupy- 
ing a  considerable  area,  made  it  necessary  that  a  portion  of 
territory  very  much  larger  than  a  New  England  township 
should  belong  to  the  political  unit;  otherwise,  the  political 
body  would  contain  only  a  very  few  persons,  too  few  to 
render  it  a  proper  political  organization.  The  Congrega- 
tional Church,  moreover,  was  wanting,  and  there  was  no 
centralizing  influence  to  draw  the  inhabitants  together  as 
the  church  had  drawn  them  together  in  New  England. 
There  were  no  manufactures  to  induce  the  people  to  live 
in  towns  rather  than  on  the  great  plantations.  On  the 
plantations  there  were  gatiiered  nvimbers  of  dependents, 
and  this  condition  of  things  threw  the  management  of  public 
affairs  into  the  hands  of  an  aristocratic  minority.  A  few 
men  thus  became  very  well  trained  for  the  business  of  gov- 
ernment; and  their  special  fitness  and  their  opportunity  of 
continuing  in  office  gave  them  an  extraordinary  influence 
in  the  government  of  the  colonies  to  which  they  belonged, 
and,  later,  in  the  government  of  the  nation. 

Topics. — Officers  of  the  southern  county. — The  county  court. — 
The  general  court. — The  sheriff. — Local  government  in  Maryland. 
— The  hundred. — The  county  in  Maryland.— The  assembly. — Con- 
trast between  the  social  conditions  of  New  England  and  those  of 
the  southern  colonies. 

References. — Fiske,  Civil  Government,  57-74;  Hart,  Practical 
Essays,  147-161;  Hart,  Actual  Government,  45;  Hinsdale,  American 
Government,  40-42;  Macy,  Our  Government,  17,  18. 

6.  Local  Government  in  the  Middle  Colonies. — In  the 
middle  colonies  the  local  government  differed  from  that  of 
New  England  as  well  as  from  that  of  the  southern  colonies. 
It  embraced  the  principal  features  of  the  local  government 
in  both  of  these  regions.  Both  towns  and  counties  were 
recognized  as  parts  of  the  political  organization.     The  be- 


14         THE  GOVERNMENT  OF  THE   UNITED  STATES 

giunings  of  New  York  are  found  in  the  charter  granted,  in 
1614,  to  the  United  New  Netherland  Company,  by  the  States- 
General  of  Holland.  This  company  was  established  to 
trade  with  the  Indians,  not  to  found  colonies.  The  charter 
of  the  United  New  Netherland  Company  expired  in  1618. 
The  privileges  it  had  enjoyed  were  granted  to  the  West 
India  Company  in  1621.  The  general  government  of  this 
company  was  vested  in  a  board  or  assembly  of  nineteen 
delegates,  who  elected  a  director  general  and  a  council. 
The  director  general  and  the  council  held  "all  powers, 
judicial,  legislative,  and  executive,"  under  the  permanent 
authority  of  the  resolutions  and  customs  of  the  Fatherland. 
The  West  India  Company  established  certain  proprietors 
called  "Patroons."  Each  "Patroon"  received  a  grant  of 
land  extending  sixteen  miles  on  one  side  of  the  Hudson 
River,  or  eight  miles  on  both  sides,  "  and  as  far  into  the  coun- 
try as  the  situation  of  the  occupiers  will  permit."  It  was 
required  of  the  persons  receiving  these  grants  that  each 
should  plant  a  colony  of  fifty  persons  over  fifteen  years  of 
age.  Each  should  undertake  also  to  support  a  schoolmaster 
and  a  minister  of  religion.  Manufacturing  was  prohibited. 
The  "Patroon"  was  permitted  to  receive  the  services  of  the 
colonists,  whose  position  under  the  "  Patroon  "  was  similar 
to  that  of  the  vassals  with  reference  to  their  lords  under 
European  feudalism. 

More  liberal  provisions  for  governing  the  Dutch  settle- 
ments were  made  later.  Municipal  governments  were 
framed  under  the  authority  of  the  West  India  Company. 
A  representative  government  was  granted  to  Brooklyn  in 
1646;  and  a  form  of  municipal  government  was  obtained  for 
New  Amsterdam  in  1652.  In  1653,  moreover,  "  the  present 
city  of  Albany  was  released  from  feudal  jurisdiction."  In 
the  course  of  time  other  towns  acquired  municipal  self- 
government,  and  under  English  rule  the  feudal  privileges 
of  the  landed  aristocracy  tended  to  disappear.     In  New 


THE  COLONIES  15 

York,  after  1664,  the  county  became  an  important  factor  in 
the  local  government;  more  important,  in  fact,  than  the 
county  in  New  England,  but  less  important  than  the  county 
in  Virginia.  The  town,  however,  as  a  vigorous  inheritance 
from  the  Dutch,  continued  to  maintain  itself  within  the 
county,  and  to  share  with  the  county  the  control  of  the 
affairs  of  the  local  government.  In  Pennsylvania,  William 
Penn  established  the  county  as  the  largest  political  division, 
and  also  carried  out  the  provisions  of  his  charter  from 
Charles  II,  which  permitted  him  "  to  erect  and  incorporate 
towns  into  boroughs,  and  boroughs  into  cities."  In  Mas- 
sachusetts, the  town  was  more  important  than  the  county; 
in  Virginia,  the  county  was  more  important  than  the  town; 
but  in  the  middle  colonies  the  counties  and  the  towns 
preserved  a  more  nearly  even  balance  of  importance. 

Topics. — General  character  of  local  government  in  the  middle 
colonies. — Feudalism. — The  beginnings  of  New  York. — The  West 
India  Company. — "Patroons.  " — Later  municipal  governments 
under  the  Dutch. — The  release  of  Albany  from  feudal  jurisdiction. 
— The  county  in  the  middle  colonies. — Penn's  influence  in  Penn- 
sylvania. 

References. — Fiske,  Civil  Government,  70-SO;  Ford,  American 
Citizen's  Manual,  Part  I,  60-G4;  Hinsdale,  American  Government, 
42,  43;   Macy,  Our  Government,  14-16. 

7.  The  Privilege  of  Voting. — "In  New  England  the 
right  of  voting  was  inherent  in  persons  admitted  to  the 
freedom  of  a  colony."  "A  freeman  did  not  become  such 
unless  he  possessed  certain  prescribed  qualifications,  and 
until  he  had  been  approved,  admitted,  and  sworn."  When 
these  steps  had  been  taken  "  he  became  entitled  to  the  ex- 
ercise of  the  elective  franchise."  The  candidate  for  the 
position  of  freeman  had  to  meet  different  requirements 
in  different  places.  In  Rhode  Island  and  Connecticut,  and 
later  in  Maryland,  a  person  must  own  land  in  order  to  be  a 


16         THE  GOVERNMENT  OF  THE  UNITED  STATES 

freeman.  The  position  of  freeman  might  be  lost,  and  with 
it  the  right  to  vote.  In  some  of  the  southern  colonies  race 
qualifications  for  voting  were  prescribed,  which  withheld 
the  suffrage  from  the  negro,  the  mulatto,  and  the  Indian. 
In  New  England  and  Virginia  moral  delinquency  might 
deprive  one  of  the  privilege  of  voting.  In  some  of  the 
colonies  this  privilege  was  confined  to  members  of  a  Prot- 
estant church;  in  others  to  those  that  "acknowledged  a 
God."  Roman  Catholics  in  most  of  the  colonies,  and  Jews 
in  some  of  them,  could  not  vote.  Women  were  prohibited 
from  voting,  by  law  in  Virginia,  and  by  custom  in  the  other 
colonies.  In  each  of  the  colonies  there  was  a  property 
qualification;  this  was  different  in  different  colonies,  and 
varied  greatly  in  some  of  the  colonies  from  time  to  time. 

Topics. — The  right  to  vote  in  New  England. — The  negro  and 
the  mulatto  in  the  southern  colonies. — The  religious  qualification. 
— Property  qualification. — Woman  suffrage. 

References. — Columbia  University  Studies  in  History,  Eco- 
nomics, and  Law,  iii,  92;  Hart,  Practical  Essays,  40-44,  135-138; 
Hart,  Actual  Government,  44;  Hinsdale,  American  Government, 
45,  46. 

8.  The  Rights  of  the  People. — The  ideas  that  had 
become  the  foundation  of  civil  liberty  in  England  were 
brought  to  America  by  the  colonists,  and  were  here  made 
the  basis  of  colonial  institutions.  The  system  of  law  en- 
forced in  England,  kno\Yn  as  the  Common  Law,  had  been 
extended  to  the  English  colonies;  and  the  colonists  enjoyed 
all  the  rights  of  Englishmen  under  this  law.  In  common 
with  the  people  of  England  they  enjoyed  rights  under  the 
writ  of  habeas  corpus,  the  rights  of  life  and  property,  and  the 
right  of  trial  by  jury  in  both  civil  and  criminal  cases.  At 
first,  as  in  England,  their  freedom  was  limited  on  the  side 
of  religion.  In  Massachusetts  and  Connecticut  the  Con- 
gregational Church  was  merged  in  the  political  organiza- 


THE  COLONIES  17 

tion.  During  part  of  the  history  of  these  colonies  only 
members  of  the  church  were  freemen;  and  the  church,  hke 
the  secular  institutions,  was  supported  by  general  taxation. 
In  Virginia  the  colonists  were  required  to  conform,  "  both  in 
canons  and  constitution,  to  the  Church  of  England,  as  near 
as  may  be. "  In  1 632  it  was  required  that  all  persons  arriving 
on  any  ship  should  be  asked  to  take  the  oath  of  supremacy 
and  allegiance;  and  if  any  refused,  he  should  be  imprisoned. 
Religious  freedom  in  the  colonies  grew  from  small  begin- 
nings, and  in  this  regard  the  tolerance  of  Rhode  Island  stood 
in  sharp  contrast  with  the  intolerance  of  Massachusetts. 

Topics. — Rights  of  the  colonists. — Ecclesiastical  restrictions  on 
political  rights. — Rhode  Island  and  religious  freedom. 

References. — Hinsdale,  American  Government,  44,  45;  Cooke, 
Virginia,  169;  Cross,  The  Anglican  Episcopate  and  the  American 
Colonies,  1-112. 

g.  The  Court  of  Assistants. — The  Court  of  Assistants 
exercised  not  only  judicial  but  also  legislative  power.  The 
first  Court  of  Assistants  organized  in  New  England  was 
formed  at  Charlestown,  in  Massachusetts,  in  1630.  Seven 
members  were  present,  which  number,  according  to  the 
charter,  was  necessary  in  the  beginning  to  give  legal  force 
to  the  acts  of  the  court.  This  became  the  normal  quorum; 
but  afterwards,  whenever  there  were  nine  assistants  in  the 
colony,  a  majority  of  them  present  might  constitute  a  legal 
court.  At  the  second  meeting,  it^was  decreed  "  that  every 
third  Tuesday  there  should  be  a  Court  of  Assistants  held  at 
the  governor's  house."  Three  weeks  thus  became  the  in- 
terval of  the  regular  meetings,  which  wxre,  however,  some- 
times interrupted  for  longer  periods. 

Topics. — Powers  of  Court  of  Assistants. — Organization  of  first 
Court  of  Assistants. — Times  of  meeting. 

References.— Palfrey,  Hidory  of  New  England,  I,  317-327; 
Fiske,  Civil  Government,  153,  154. 


18         THE  GOVERNMENT  OF  THE  UNITED  STATES 

10.  Trial  by  Jury. — Trial  by  jury  was  early  adopted  in 
all  the  New  England  colonies  except  New  Haven.  That 
colony,  it  was  said,  could  find  no  authority  for  this  form  of 
trial  in  the  Old  Testament.  In  view  of  the  difficulties  en- 
countered by  juries  in  their  attempts  to  reach  unanimity 
where  the  law  was  indefinite,  it  was  provided  that  after 
continued  failure  to  agree,  and  after  a  conference  with  the 
court,  "a  majority  of  the  jury  should  decide  the  issue;  and, 
if  they  were  equally  divided,  it  should  be  determined  by  the 
sitting  magistrates."  In  capital  offenses  special  juries 
were  summoned,  and  a  unanimous  verdict  of  guilt  was  re- 
quired for  conviction.  Juries  were  employed  in  both  the 
county  court  and  the  Court  of  Assistants,  except  in  cases 
involving  less  than  forty  shillings.  These  cases  were  tried 
by  the  judges  alone. 

Topics. — Adoption  of  trial  by  jury. — Majority  decisions. — ■ 
Special  juries. — Where  and  when  not  employed. 

References. — Hinsdale,  American  Government,  45,  46;  Fiske, 
Civil  Government,  20,  21,  186. 


FOR  ADVANCED  STUDY 

Origin  of  Local  Government  in  the  Colonies. — Fiske, 

Civil  Government,  lG-21,  35-41,  57-77;  American  Political  Ideas, 
31-53;  Doyle,  English  in  America,  iii,  10-17;  Hosmer,  Anglo- 
Saxon  Freedom,  118-121. 

The  Government  of 'Virginia,  1606-25. — Preston,  Docu- 
ments, 1-35;  Lodge,  English  Colonies,  1-12;  Fiske,  Old  Virginia, 
i,  177-188,  191-194;  ii,  9-18,  23-30,  34,  35,  174-181,  203-218; 
Doyle,  English  in  America,  i,  101-184;  Hart,  Contemporaries,  i,  218- 
225;  Hosmer,  Anglo-Saxon  Freedom,  122-125;  Thwaites,  Colonies, 
96-98,  100-104,  106-109. 

The  Governor  and  Company  of  Massachusetts  Bay. 
— MacDonald,  Select  Charters,  37-42;  Preston,  Documents,  36-61; 
Ellis,  Puritan  Age  and  Rule,  Chap.  VII;  Fiske,  The  Beginnings  of 


THE  COLONIES  19 

New  England,  92-104;  Fiske,  Civil  Government,  146-148;  Winsor, 
Boston,  i,  151-159;  Palfrey,  History  of  New  England,  i,  283-329; 
Doyle,  The  English  in  America,  ii,  Chap.  Ill;  Hart,  Contemporaries, 
i,  366-382. 

The  Union  of  Church  and  State  in  New  England.^ 
Walker,  History  of  the  Congregational  Church  in  the  United  States, 
Chaps.  III-VI;  Ellis,  Puritan  Age  and  Rule,  Chap.  VI;  Fiske, 
Beginnings,  108,  109,  247-252;  Palfrey,  History  of  New  England,  i, 
344-348,  383-389;  Hart,  Contemporaries,  i,  330-333,  393-396; 
Lauer,  Church  and  State  in  New  England  {Johns  Hopkins  University 
Studies);  Winsor,  Boston,  i,  148-155;  Doyle,  The  English  in  America, 
ii,  146-148. 

Massachusetts  as  a  Royal  Province.— ^lacDonald,  Select 
Charters,  i,  205-212;  Doyle,  English  in  America,  iii,  339-358,  372- 
383;  Hutchinson,  History  of  the  Colony  of  Massachusetts,  i,  372-387; 
Fiske,  Beginnings,  271-278;  Fisher,  The  Colonial  Era,  218-225. 

The  Development  of  Religious  Freedom  in  New  Eng- 
land.—  Arnold,  History  of  Rhode  Island,  i.  Chap.  I-IV;  EUis, 
Puritan  Age  and  Rule,  Chap.  VIII;  W^alker,  History  of  the  Congre- 
gational Church,  129-136;  Fiske,  Beginnings,  114-116;  Hart,  Con- 
temporaries, \,  402-406;  Schaff,  Progress  of  Religious  Freedom,  80. 

The  Beginnings  of  Popular  Government  in  Connecti- 
cut.— Hart,  Contemporaries,  415-422;  MacDonald,  Select  Charters, 
i,  60-65;  Preston,  Documents,  78-84;  Old  South  Leaflets,  8;  Johnston, 
Connecticut,  56-64;  Fiske,  Civil  Government,  155-208;  Fiske,  Begin- 
nings, 127,  128,  135,  136;  Levcrmoro,  The  Republic  of  New  Haven,  23. 

The  Government  of  New  Netherlands. — O'Callachan, 
History  of  New  Netherlands,  ii.  Book  VI,  Chap.  \'11I;  Fiske,  Dutch 
and  Quaker  Colonies,  i,  131-140,  162-201 ;  Lodge,  English  Colonies, 
286-292;  Thwaites,  Colonies,  198-202;  Drake,  Making  Virginia, 
123-138;  Hart,  Contemporaries,!,  529-537;  Schuyler,  Colonial  New 
York,  i,  11-26;  ^lacDonald,  Select  Charters,  i,  43-50. 

The  Beginnings  of  Government  in  Pennsylvania.— 
MacDonald,  Select  Charters,  i,  1S3,  192-199;  Fiske,  Dutch  and 
Quaker  Colonies,  ii,  114-118,  140-166,  316,  317;  Hinsdale,  Old 
Northwest,  98-103;  Fiske,  Civil  Government,  151;  Hart,  Contempo- 
raries, i,  554-558;  Gordon,  History  of  Pennsylvania,  Chaps.  III-IX; 


20         THE  GOVERNMENT  OF  THE  UNITED  STATES 

Sharpless,  Two  Centuries  of  Pennsylvania  History,  Chaps.  I-VI; 
Sharpless,  A  Quaker  Experiment  in  Government,  Chaps.  II-VIII. 

Lord  Baltimore  and  the  Charter  of  Maryland.— Pres- 
ton, Documents,  03-77;  MacDonald,  Select  Charters,  i,  53-59;  W. 
H.  Browne,  Maryland,  Chap.  II;  Fiske,  Old  Virginia,  i,  256-281; 
Doyle,  The  Emjlish  in  America,  i,  195,  277-281;  Lodge,  English 
Colonies,  93-100;  Drake,  The  Making  of  Virginia,  Q6-79;  Eggleston, 
The  Beginners  of  a  Nation,  234-239. 

Religious  Toleration  in  Maryland.— MacDonald,  Select 
Charters,  i,  10-1-106;  Hart,  Contemporaries,  i,  291-294;  W.  H. 
Browne,  Maryland,  57-89;  Fiske,  Old  Virginia,  i,  301-318;  Doyle, 
The  English  in  America,!,  275-313 ;  Hart,  Contemporaries,  i,  262-267. 

The  Early  Decades  of  Government  in  the  Carolinas. 
—MacDonald,  Select  Charters,  i,  120-125,  149-168;  McCrady,  His- 
tory of  South  Carolina,  i.  Chaps.  I-V;  Doyle,  English  in  America,  i, 
328-380;  Fiske,  Old  Virginia,  ii,  270-337;  Hart,  Contemporaries,  i, 
275-280. 

Oglethorpe's  Rule  in  Georgia.— MacDonald,  Select  Char- 
ters, i,  235-248;  Bancroft,  United  States,  ii,  281-299;  Winsor, 
America,  v.  Chap.  VI;  Fisher,  The  Colonial  Era,  303-312;  Hart, 
Contemporaries,  ii,  110-126. 

Taxation  in  the  Colonies.— Lecky,  History  of  England,  i, 
360;  iii,  344,  345;  Morley,  Walpole,  167-169;  Annual  Register,  1765, 
25;  Bancroft,  History  of  the  United  States,  iii,  97-101,  114,  119,  176- 
186,  202,  20S-210;LaTned,  History  of  the  United  States,  127-132, 144, 
164,  177. 


CHAPTER  II 

UNION     AND     INDEPENDENCE 

II.  The  New  England  Confederacy  of  1643. — It  is 
possible  that  different  groups  of  colonies  may  have  had 
different  preferences  concerning  forms  of  government. 
Nevertheless,  they  were  all  of  one  mind  respecting  the  de- 
sirability of  local  self-government;  and  in  the  course  of  time 
they  were  all  moved  by  the  desire  for  union.  Before  the 
end  of  the  seventeenth  century  many  persons  had  enter- 
tained the  thought  that  the  colonies  ought  to  be  joined 
together  in  a  common  bond  of  unity  and  peace.  In  the 
first  union  contemplated,  it  was  proposed  to  unite  the  colo- 
nies of  similar  theological  views.  The  union  known  as 
the  New  England  Confederacy  of  1643  embraced  the  colonies 
of  Massachusetts,  Connecticut,  New  Haven,  and  Plymouth 
— in  all,  twenty-four  thousand  inhabitants.  The  central 
power  in  this  confederacy  was  vested  in  a  body  of  eight 
commissioners,  two  from  each  colony,  who  should  meet 
once  a  year.  The  aim  of  the  union  was  to  provide  concerted 
action  for  self-defense  and  for  the  advancement  of  the 
common  welfare.  The  power  to  impose  taxes  remained 
with  the  governments  of  the  several  colonies;  with  them 
remained  also  the  executive  power.  The  body  of  the  com- 
missioners could  only  advise  the  colonial  governments  and 
recommend  measures. 

Topics. — Points  regarding  which  the  colonies  were  in  agree- 
ment.— First  union  contemplated. — Colonies  embraced  in  first 
union  effected. — Organization  of  this  union. — Purpose  and  powers. 

21 


22    THE  GOVERNMENT  OF  THE  UNITED  STATES 

References. — Fiske,  Civil  Government,  210  ;  Hart,  Actual 
Government,  48;  Macy,  Our  Government,  36;  Frothingham,  Rise  of 
the  Republic,  29-66. 

12.  Steps  toward  a  General  Congress. — The  first  call 
for  a  general  congress  of  the  English  colonies  of  America 
was  made  by  the  general  court  of  Massachusetts.  It  was 
dated  March  19,  1690.  The  following  is  a  copy  of  the  origi- 
nal order: 

"Their  majesty's  subjects  in  these  northern  plantations 
of  America,  having  of  late  been  invaded  by  the  French  and 
Indians,  and  man}^  of  them  barbarously  murdered  and  are 
in  great  danger  of  further  mischiefs:  For  the  prevention 
whereof,  it  is  by  this  court  thought  necessary  that  letters 
be  written  to  the  several  governors  of  the  neighboring 
colonies,  desiring  them  to  appoint  commissioners  to  meet 
at  New  York  on  the  last  Monday  of  April  next,  then  to 
advise  and  conclude  on  suitable  methods  in  assisting  each 
other  for  the  safety  of  the  whole  land.  And  that  the 
governor  of  New  York  be  desired  to  signify  the  same  to 
Virginia,  Maryland,  and  parts  adjacent."^ 

Each  colony  invited  sent  a  cordial  reply,  but  the  cir- 
cumstances of  some  of  them  did  not  permit  them  to  be  rep- 
resented at  the  meeting.  Commissioners  of  four  colonies 
convened  at  New  York.  Maryland  promised  to  codperate 
in  the  undertaking;  and  the  five  colonies  agreed  to  raise 
eight  hundred  and  fifty-five  men  to  subdue  the  French  and 
Indian  enemies.  The  quota  of  each  colony  was  as  follows: 
New  York,  400;  Massachusetts,  160;  Plymouth,  60;  Con- 
necticut, 135;   Maryland,  100. 

This  undertaking  had  its  principal  significance  not  in  the 
results  of  the  expedition  against  Canada,  but  in  its  sugges- 
tions   as  to   possible   achievements   through   union.      The 

*  Quoted  by  Frothingham  from  Massachusetts  Archives,  xxxv,  321. 


UNION  AND  INDEPENDENCE  23 

French  in  their  zeal  for  extending  their  dominion  in  America 
offered  a  continual  menace  to  the  English  colonies,  and  led 
the  colonists  to  see  that  they  had  a  common  interest  and 
must  have  a  common  council — one  head  and  one  purse. 

The  most  notable  of  the  early  congresses  was  that 
convened  at  Albany  in  1754.  It  was  composed  of  twenty- 
five  commissioners,  representing  seven  colonies:  Massa- 
chusetts, New  Hampshire,  Connecticut,  Rhode  Island, 
Pennsylvania,  Maryland,  and  New  York.  It  recommended 
a  plan  for  the  union  of  the  colonies.  This  plan  provided  for 
a  general  government,  "under  which  each  colony  might 
retain  its  constitution."  The  conspicuous  features  of  the 
general  government  proposed  were  a  grand  council  and  a 
president  general.  The  grand  council  was  to  be  composed 
of  three  deputies  from  each  colony,  elected  by  the  assemblies 
of  the  colonies.  The  president  general,  as  the  executive  of 
the  union,  was  to  be  appointed  and  supported  by  the  crown. 
This  government  was  to  have  extensive  powers,  especially 
in  relation  to  the  enemies  of  the  colonists.  By  a  vote  of  the 
congress  the  plan  was  laid  before  the  authorities  of  the 
several  colonies,  but  it  was  nowhere  adopted. 

After  the  failure  of  the  Albany  plan,  the  antagonism 
between  the  American  and  the  English  views  respecting  the 
colonies  became  especially  evident.  It  was  generally  be- 
lieved that  the  Government  in  England  was  preparing  a 
system  of  "inland  taxation"  for  the  colonies.  This  belief 
was  confirmed  by  the  resolutions  read  in  the  House  of 
Commons,  March  9,  1764,  which  declared  that  the  Govern- 
ment proposed  to  raise  a  revenue  in  America  by  imposing 
a  stamp  tax  on  all  documents  used  in  court  and  on  all  legal 
documents  of  whatsoever  kind.  This  declaration  provoked 
opposition  in  America  and  led  the  assemblies  of  all  the 
colonies  to  consider  a  proposition  for  joint  action.  In  sj^te 
of  the  protests  and  petitions  of  the  colonists,  the  proposed 
bill  became  a  law  in  March,  1705.     In  the  following  October, 


24         THE  GOVERNMENT  OF  THE  UNITED  STATES 

a  congress  of  twenty-eight  delegates,  representing  nine 
colonies,  met  in  New  York.  Virginia,  New  Hampshire, 
Georgia,  and  North  Carolina  were  in  sympathy  with  the 
movement,  but  were  not  represented  in  the  congress.  After 
mature  deliberation  the  congress  adopted  a  declaration  of 
rights  and  grievances.  Through  this  declaration  the 
colonists  affirmed  their  affection  for  the  king,  claimed  the 
rights  and  privileges  of  subjects  in  England,  and  acknowl- 
edged "all  due  subordination"  to  Parliament.  They 
affirmed,  moreover,  that  taxes  could  not  lawfully  be  imposed 
upon  them,  except  by  their  legislatures,  and  that  they  en- 
joyed the  right  of  trial  by  jury  in  common  with  all  other 
subjects  of  the  king.  There  was  no  hint  of  a  desire  for 
separation.  The  assemblies  of  the  colonies  approved  the 
action  of  the  congress. 

Topics. — First  call  for  general  congress  of  the  colonies. — 
Meeting  at  New  York. — Immediate  purpose  of  the  meeting. — Plans 
of  the  French  in  Canada. — Congress  of  Albany,  1754. — Albany 
plan  for  union. — Grand  council  and  president  general. — Fate  of  the 
Albany  plan. — "Inland  taxation." — News  of  the  proposed  stamp 
tax. — New  York  congress,  1765. — Action  of  New  York  congress. 

References. — Fiske,  Civil  Government,  211  ;  Hart,  Actual 
Government,  48;  Hinsdale,  American  Government,  64-71;  Lalor, 
Cyclopaedia,  i,  45;  iii,  787;  Macy,  Our  Government,  37. 

13.  Restrictions  on  the  Economic  Freedom  of  the 
Colonies. — By  the  navigation  laws  it  was  provided  that  all 
commodities  imported  into,  or  exported  from,  any  English 
colony  in  Asia,  Africa,  or  America  should  be  carried  in 
vessels  owned  in  England  or  in  the  colonies,  of  which  the 
masters  and  at  least  three-fourths  of  the  mariners  were 
English.  The  Virginians  were  annoyed  by  this  restriction, 
for  they  had  been  accustomed  to  ship  large  quantities  of 
tobacco  in  Dutch  vessels;  but  the  people  of  New  England,  in 
the  course  of  time,  found  it  a  less  inconvenience:  it  "stimu^ 


UNION   AND  INDEPENDENCE  25 

lated  shipbuilding  and  the  shipping  interest  in  the  colo- 
nies." 1  "  In  less  than  twenty  years  New  England  ships  be- 
gan to  be  sold  in  Old  England.  During  the  next  few 
decades  the  business  sprang  up  in  every  town  along  the 
New  England  coast  and  in  many  a  riverside  village  for 
miles  inland."  ^ 

By  the  act  of  IGGO  it  was  provided  that  certain  wares 
enumerated  might  be  carried  from  the  colonies  to  England, 
but  to  no  other  country.  These  articles  were  ginger,  sugar, 
tobacco,  cotton,  wool,  indigo,  fustic,  and  other  woods  used 
for  dyeing.  This  list  was  increased  later  by  the  addition  of 
rice,  tar,  pitch,  masts,  hemp,  copper,  and  beaver  skins. 
With  reference  to  the  majority  of  these  articles  the  restric- 
tion was  in  reality  not  a  serious  grievance  for  the  colonists. 
The  producers  of  tobacco  and  rice  suffered  most. 

There  were  restrictions  also  on  manufactures.  Wool, 
yarn,  and  woolen  cloth  produced  in  the  plantations  might  be 
manufactured  for  local  needs,  but  not  for  a  distant  market. 
After  1732,  hats  might  be  manufactured  for  sale  within  the 
colony  where  they  were  made;  but  they  might  not  be  ex- 
ported to  England,  to  the  Continent  of  Europe,  or  to  the 
other  colonies.  No  steel  furnaces  or  slitting-mills  might 
be  erected.  The  prohibition,  however,  did  not  extend  to 
working  in  iron  on  a  small  scale,  as  in  making  nails,  bolts, 
and  farm  implements. 

These  restrictions  helped  to  arouse  the  colonists  to  re- 
nounce their  allegiance  to  the  government  of  England. 
They  were  not,  in  fact,  generally  burdensome;  yet  this  did 
not  prevent  them  from  becoming  incentives  to  independence; 
for  what  they  were  in  reality  was  less  important  than  what 
they  were  thought  to  be  by  the  colonists  of  the  eighteenth 
century. 


'  Hart,  Formation  of  the  Union,  46. 
^  Ashley,  in  Quarterly  Journal  of  Economics,  xiv,  5. 
3 


26         THE  GOVERNMENT  OF  THE  UNITED  STATES 

Topics. — Ships  to  be  employed  in  trade  with  the  colonies. — ' 
Effect  of  restriction  on  Virginians. — Effect  in  New  England. — 
Restriction  as  to  wares. — Restrictions  on  manufacturing. — General 
effect  of  restrictions  on  colonists. 

References. — Hart,  Formation  of  the  Union,  46  ;  Ashley  in 
Quarterly  Journal  of  Economics,  xiY,  1-29;  Hinsdale,  American  Gov- 
ernment, 59,  60. 

14.  The  Congress  of  1774. — The  increasing  hostility 
of  the  colonists  to  the  policy  of  the  Government  in  England 
led  them  to  continue  to  seek  redress  through  united  action. 
For  this  purpose  a  congress  was  assembled  in  Philadelphia, 
September  5,  1774.  It  was  composed  of  fifty-five  delegates 
representing  twelve  colonies.  Georgia  elected  no  delegates. 
The  object  of  the  meeting  was  to  recover  for  the  colonies 
their  just  rights  and  liberties,  and  to  restore  harmony  be- 
tween Great  Britain  and  America.  In  a  Declaration  of 
Rights,  adopted  October  14th,  the  congress  claimed  "a  free 
and  exclusive  power  of  legislation  in  their  provincial  legis- 
latures, where  their  rights  of  representation  could  alone  be 
preserved  in  all  cases  of  taxation  and  internal  polity," 
acknowledging  only  the  vote  of  the  king.  The  congress  also 
voted  addresses  to  the  king,  the  people  of  Great  Britain,  and 
the  inhabitants  of  British  America;  and  at  the  same  time 
agreed  on  a  commercial  policy  of  non-intercourse  with  Great 
Britain.  The  document  containing  the  resolutions  of  the 
congress  was  entitled  "  The  Association  of  the  United  Colo- 
nies," and  was  signed  by  fifty-two  members.  Addresses 
were  made  also  to  the  people  of  Quebec,  St.  John's,  Nova 
Scotia,  Georgia,  and  East  and  West  Florida,  urging  the 
adoption  of  the  measures  taken  by  the  congress.  The 
congress  determined  that  another  meeting  should  be  held  on 
the  tenth  of  the  following  May,  unless  in  the  meantime  there 
should  be  a  redress  of  grievances.  It  was  dissolved  on  the 
twenty-sixth  of  October.     The  principal  achievement  of 


UNION  AND  INDEPENDENCE  27 

this  and  the  preceding  congresses  was  the  union  of  the 
colonies.  Union  had  become  the  basis  of  their  hope  of 
liberty. 

Topics. — Purpose  of  Congress  of  1774. — The  Declaration  of 
Rights. — "The  Association  of  the  United  Colonies." — Proposition  to 
neighbors  on  the  north. 

References. — Bryce,  American  Commonwealth,  i,  17;  Froth- 
ingham,  Rise  of  the  Republic,  331,  336-340,  358,  360-381,  408; 
Fiske,  Civil  Government,  212;  Hart,  Actual  Government,  48,  49; 
Plinsdale,  American  Government,  71 ;  Macy,  Our  Government,  37. 

15.  The  Congress  of  1775. — When  the  tenth  of  May, 
1775,  came,  there  had  been  no  redress  of  grievances;  on 
the  contrar)?-,  actual  hostilities  had  been  begun  in  the  en- 
counter at  Lexington.  The  Congress  of  1775  met,  therefore, 
on  the  tenth  of  May,  in  accordance  with  the  adjournment  of 
the  previous  year.  All  the  colonies  were  represented,  and 
many  of  the  members  had  sat  in  the  congress  of  the  preced- 
ing year.  Among  the  new  members  were  George  Clinton  and 
Benjamin  Franklin.  Peyton  Randolph,  president  of  the 
last  congress,  and  Charles  Thompson,  the  secretary,  were 
reelected.  The  object  of  the  meeting  was  "to  obtain  re- 
dress of  American  grievances,"  "to  recover  and  establish 
American  rights  and  liberties,"  "to  restore  harmony  be- 
tween Great  Britain  and  her  colonies,"  and  "to  advance  the 
best  good  of  the  colonies."  Since  the  meeting  of  the  last 
^.jcongress  much  had  happened  to  change  the  mental  attitude 
of  the  colonists.  In  a  few  months  they  had  been  hurried 
on  to  a  position  which  they  had  only  dimly  foreseen.  The 
friction  in  Massachusetts  had  grown  into  active  hostility. 
The  fatal  encounters  of  Lexington  and  Concord  had  made  it 
necessary  to  choose  between  submission  and  war.  But  the 
congress  was  not  ready  to  adopt  either  extreme.  It  would 
not  block  the  way  to  reconciliation,  but  at  the  same  time  it 
resolved  that  the  colonies  should  "  be  immediately  put  into 


28    THE  GOVERNMENT  OF  THE  UNITED  STATES 

a  state  of  defense."  It  adopted  the  colonial  troops  in 
Massachusetts,  called  them  the  army  of  the  United  Colonies, 
and  made  rules  for  their  government.  By  a  unanimous 
vote  it  elected  George  Washington  to  be  the  commander 
in  chief.  While  it  was  waiting  for  a  reply  to  its  last  petition 
to  the  king,  the  congress  appeared  to  be  somewhat  uncertain 
of  its  position.  After  the  arrival  of  this  reply,  in  the  form  of 
a  proclamation  for  suppressing  rebellion  and  sedition,  its 
duty  was  clear,  and  it  assumed  the  powers  of  a  sovereign 
body.  It  stood  for  the  new  nation  that  was  coming  into 
being. 

Topics.— Condition  in  calling  Congress  of  1775.— :Member ship. 
— Object.- State  of  affairs  in  Massachusetts.— Army  of  the  United 
Colonies.— The  commander  in  chief.— Reply  to  petition  to  king. 

References.— Frothingham,  Rise  of  the  Republic,  420-429; 
Fiske,  Civil  Government,  212;   Hart,  Actual  Government,  49. 

i6.  The  Continental  Congress.— The  congress  that 
undertook  to  express  the  common  will  of  the  colonies, 
and  to  direct  their  common  affairs,  before  the  adoption  of 
the  Articles  of  Confederation,  was  a  revolutionary  body. 
This  means  that  it  had  come  into  existence  by  a  method  not 
prescribed  in  the  laws  under  which  the  colonies  existed. 
These  laws  provided  for  a  government  in  each  of  the  several 
colonies,  but  established  no  political  connection  between 
them.  The  colonies  were  dependent  upon  a  common 
superior,  but  no  law  had  been  made  providing  for  their 
union.  In  forming  a  union  and  creating  a  congress  as  the 
organ  of  the  United  Colonies,  they  went  beyond  the  pre- 
scriptions of  the  law;  their  action  was  revolutionary.  The 
delegates  to  the  Continental  Congress  were  appointed  by 
the  popular  branch  of  the  colonial  legislature,  by  conven- 
tions called  for  that  purpose,  or  "  by  committees  duly  author- 
ized to  make  the  appointment."  There  was,  however,  no 
agreement  among  the  colonies  respecting  the  number  of 


UNION  AND  INDEPENDENCE  29 

delegates  each  should  send;  and  the  delegates  actually  sent 
held  among  the  several  colonies  no  uniform  ratio  to  the 
population.  There  was,  moreover,  no  adequate  informa- 
tion at  hand  for  determining  the  relative  importance  of  the 
colonies  with  reference  either  to  wealth  or  to  population. 
It  was  impossible,  therefore,  for  the  delegates  to  adopt  a 
method  of  voting  that  would  assign  to  each  colony  a  number 
of  votes  in  keeping  with  its  importance.  They  finally  re- 
solved that  each  colony  should  have  one  vote. 

The  members  of  the  second  Continental  Congress  were 
appointed  before  the  conflict  at  Lexington.  They  were 
appointed  for  no  definite  term,  but  were  renewed  from  time 
to  time  in  such  a  manner  that  the  congress  became  a  per- 
manent body.  Thus,  before  the  declaration  of  independence 
"  the  people  of  the  several  colonies  had  established  a  national 
government  of  a  revolutionary  character";  and  "when 
such  a  government  has  been  instituted  for  the  accomplish- 
ment of  great  purposes  of  public  safety,  its  powers  are 
limited  only  by  the  necessities  of  the  case  out  of  which  they 
have  arisen,  and  of  the  objects  for  which  they  were  to  be 
exercised.  When  the  acts  of  such  a  government  are  ac- 
quiesced in  by  the  people,  they  are  presumed  to  have  been 
ratified  by  the  people.  To  the  case  of  our  Revolution  these 
principles  are  strictly  applicable  throughout.  The  congress 
assumed  at  once  the  exercise  of  all  the  powers  demanded 
by  the  public  exigency,  and  their  exercise  of  those  powers 
was  fully  accjuiesccd  in  and  confirmed  by  the  people."  ^ 

This  Government  was  imperfect  in  its  organization  in 
many  particulars.  It  could  not  execute  its  decrees  directly; 
it  had  no  proper  national  tribunal;  and  it  had  no  indepenchMit 
revenues.  The  adoption  of  the  Declaration  of  Independ- 
ence made  no  important  change  in  the  Government.  It  did 
not  increase  the  number  of  institutions,  nor  did  it  render 

'  Curtis,  Constitutional  History  of  the  United  States,  i,  25,  26. 


30         THE  GOVERNMENT  OF  THE  UNITED  STATES 

more  perfect  the  civil  machinery.  After  the  declaration  of 
independence,  however,  the  congress  was  the  legal  sovereign 
in  the  United  Colonies,  now  become  the  United  States  of 
America.  The  Continental  Congress  which  held  in  its  hand 
the  destiny  of  the  new  nation  was  composed  of  about  twenty- 
five  men,  and  "  their  number  often  fell  below  twenty-five, 
but  never  rose  to  more  than  thirty-five."^ 

Topics. — Character  of  Continental  Congress. — Political  position 
of  the  colonies. — Appointment  of  members. — Reason  for  the  rule 
of  voting. — Significance  of  Congress  with  respect  to  government. — - 
Imperfections  of  the  government  established. — Number  of  members. 

References. — Curtis,  Constitutional  History  of  the  United  States, 
i,  1-85;  Bryee,  American  Commonwealth,  i,  16-24;  Fiske,  Civil 
Government,  212-220;  Lalor,  Cyclopoedia,  i,  589;  Frothingham, 
Rise  of  the  Republic,  413-489. 

17.  The  Project  of  Independence. — The  colonists  who 
observed  to  what  an  extent  the  several  colonies,  prior  to 
1775,  had  acted  together,  saw  that  the  next  step  must  be  in- 
dependence. But  on  the  question  of  a  final  separation  from 
Great  Britain  there  was  a  great  variety  of  opinions.  The 
Tories  were  united  against  it.  Many  others  thought  that 
time  would  bring  redress  of  grievances,  and  consequently 
wished  delay.  In  the  last  five  weeks  of  1775,  the  Pennsyl- 
vania assembly,  the  New  Jersey  assembly,  the  Marjiand 
convention,  and  the  North  Carolina  provincial  congress 
declared  their  opposition  to  the  project  of  independence. 
Hitherto,  the  general  congress  had  made  no  affirmation  in 
favor  of  separation.  But  events  soon  brought  the  colonists 
into  a  position  where  an  announcement  of  their  determina- 
tion to  be  free  was  inevitable.  Separation  from  Great  Britain 
became  the  theme  of  discussion  in  the  army,  at  the  fireside, 
in  the  newspapers,  and  in  numberless  pamphlets.     When 

'  Friedenwald,  The  Continental  Congress,  in  Report  of  American  His- 
torical Association,  1894,  p.  231. 


UNION  AND  INDEPENDENCE  31 

the  question  first  came  up  in  congress  in  the  fall  of  1775, 
the  opposition  was  strong;  but  it  grew  gradually  weaker  as 
independence  was  more  freely  and  fully  discussed  through- 
out the  colonies.  Before  final  action  was  taken  by  the 
congress,  the  majority  of  the  people  were  known  to  favor 
independence.  On  the  evening  of  July  4,  1776,  the  com- 
mittee of  the  whole, ^  that  had  been  considering  the  Declara- 
tion, reported  to  the  congress  the  draft  that  had  been  agreed 
upon.  This  was  then  adopted  in  the  congress  by  the  unani- 
mous vote  of  twelve  colonies.  Five  days  later  New  York 
approved  the  Declaration,  which  thus  became  the  first 
utterance  of  the  United  States  of  America. 

The  events  of  the  years  immediately  following  the  con- 
gress in  New  York  led  to  a  rapid  development  of  opinion 
among  the  colonists.  In  this  period  the  idea  of  separation 
from  the  mother  country  found  positive  expression;  the 
formation  of  a  permanent  union  among  the  colonies  became 
a  prominent  object  of  popular  ambition;  and  the  establish- 
ment of  an  independent  government  appeared  to  many 
persons  as  quite  possible.  Two  parties  became  clearly 
recognized.  Those  who  wished  the  colonies  to  remain  under 
the  dominion  of  England  were  called  Loyalists,  Tories,  and 
Friends  of  Government;  those  who  opposed  the  policy  ot 
England,  and  looked  forward  to  independence  were  called 
Whigs,  Patriots,  and  Sons  of  Liberty.  The  culmination 
of  this  movement  was  the  Declaration  of  Independence.  It 
is  worthy  of  note  that,  as  the  colonists  advanced  toward  the 
position  of  an  independent  nation,  their  achievements  were 
made  in  a  significant  order.  First,  they  sought  union,  that 
they  might  be  of  one  mind  and  have  one  policy  in  dealing 
with  the  mother  country.  In  the  second  place,  when  union 
had  been  attained,  it  was  in  union  that  the  Declaration  of 
Independence  was  made.     In  the  third  place,  it  was  as  one 

'  See  page  91. 


32         THE   GOVERNMENT  OF  THE  UNITED  STATES 

body  that  they  fought  to  win  their  independence,  and  to 
cause  it  to  be  recognized. 

Topics. — Indications  of  independence. — Parties  and  opinions 
respecting  independence. — Attitude  of  congress. — The  declaration 
before  congress. — Aj^proval  by  New  York. 

References. — Frothingham,  Rise  of  the  Republic,  403-454; 
Hart,  Actual  Government,  49;  Macy,  Our  Government,  37;  Bancroft, 
History  of  the  United  States,  ii,  85,  340,  528;  iv,  160,  426;  v,  548. 

i8.  The  "  Right  "  of  Revolution. — At  this  point  arises 
a  general  question  relating  to  what  is  termed  the  "right"  of 
revolution.  In  speaking  of  the  transfer  of  sovereignty  over 
the  colonies  from  Great  Britain  to  the  colonics  themselves, 
Coolcy  says:  "The  authority  of  the  British  crown  over  the 
colonies  was  rejected,  and  a  government  created  by  the 
people  of  the  colonies  for  themselves,  and  this  afterward 
radically  changed  and  reformed  in  the  adoption  of  the 
Federal  Constitution  under  the  great  and  fundamental  right 
of  every  people  to  change  their  institutions  at  will — in  other 
words,  under  the  right  of  revolution."^  For  a  correct 
understanding  of  this  statement  it  is  to  be  noted  that  the 
colonies  were  not  a  people,  nor  even  a  nation;  they  were 
a  part  of  the  English  nation  and  subject,  like  any  other 
part,  to  the  sovereign  authority  of  that  nation.  The  rights 
that  are  considered  in  strictly  political  discussion  are  such 
as  are  created  by,  and  exist  under,  law;  and  the  sovereign 
over  the  colonies  had  adopted  no  law  creating  the  right  of 
any  part  of  the  nation  to  secede.  Under  this  meaning  of  the 
term  there  is  clearly  no  right  of  revolution.  But  revolu- 
tions do  happen,  and  through  them  independent  nations 
sometimes  come  into  existence;  but  there  is  no  right  of 
revolution  except  such  a  moral  right  as  may  be  grounded  on 
expediency  or  utility.  The  right  under  which  the  colonists 
acted  was  of  this  kind.     The  king  "had  refused  his  assent 

^  Constitutional  Law,  25. 


UNION  AND  INDEPENDENCE  33 

to  laws,  the  most  wholesome  and  necessary  for  the  public 
good,"  and  had  done  a  long  list  of  injuries,  as  set  forth  in  the 
Declaration  of  Independence,  and  was  "unfit  to  be  the  ruler 
of  a  free  people."  In  view  of  all  these  things,  the  colonists 
thought  it  expedient  and  useful  to  separate  themselves  from 
the  authority  which  they  had  hitherto  acknowledged  as 
their  sovereign  superior.  A  nation  has  always  the  right  to 
make  changes  in  the  form  of  its  government.  In  its  con- 
stitution it  provides  a  method  through  which  the  legally 
constituted  authorities  may  make  the  desired  changes  in 
accordance  with  a  prescribed  method,  or  it  may  authorize 
any  part  of  its  inhabitants  to  do  this;  but  this  action  is  not 
properly  termed  a  revolution.  A  revolution  is  a  movement 
involving  changes  in  the  government  by  methods  not  pre- 
scribed by  law  and  not  sanctioned  by  any  right  which  the 
law  has  created.  A  revolution  may  be  advantageous  to  the 
persons  engaging  in  it  and  not  involve  any  serious  disad- 
vantage to  those  against  whom  it  is  made.  In  a  case  like 
this,  where  the  advantages  far  outweigh  any  possible  dis- 
advantages, it  may  perhaps  be  proper  to  affirm  that  a  body 
of  people  carrying  such  a  revolution  to  a  successful  issue 
possesses  a  moral  right  of  revolution. 

Topics. — Cooley  on  "ripht"  of  revolution. — Meaning  of  term 
revolution. — Changes  in  government. — IMethods  of  making  changes. 

19.  The  Declaration  of  Independence. — With  the  pub- 
lication of  this  dcclaratioft,  representatives  of  political  socie- 
ties hitherto  dependent  assumed  the  powers  of  a  sovereign. 
As  a  specific  instance  of  the  origin  of  sovereignty,  it  may  be 
noted  that  here,  in  harmony  with  the  general  law,  sover- 
eignty was  acquired  by  a  people,  or  a  part  of  a  people,  by 
assuming  it.  The  Declaration  of  Independence,  adopted  by 
a  congress  that  was  supported  by  the  governments  of  the 
several  colonies,  was  an  announcement  of  a  revolution,  and 
became  the  basis  of  a  new  state.     It  announces  that  some- 


34         THE  GOVERNMENT  OF  THE  UNITED  STATES 

times  "it  becomes  necessary  for  one  people  to  dissolve  the 
political  bands  which  have  connected  them  with  another"; 
and  it  is  inferred  from  the  action  taken  in  this  case  that  the 
determination  of  the  time  when  it  is  necessary  to  dissolve 
these  bands  is  left  to  the  communities  preparing  to  take  this 
step. 

Among  the  statements  which  the  makers  of  the  Declara- 
tion considered  as  self-evident  truths  are  the  following: 

1.  That  all  men  are  created  equal. 

2.  That  all  men  are  endowed  with  certain  inalienable 
rights. 

.3.  That  governments  are  instituted  to  secure  these 
rights. 

4.  That  governments  derive  their  just  powers  from  the 
consent  of  the  governed. 

5.  That  it  is  the  right  of  a  people  to  abolish  any  form  of 
government  whenever  it  becomes  destructive  of  these  ends; 
or  whenever  it  evinces  a  design  to  bring  the  governed  into 
submission  to  a  despotism. 

6.  That  it  is  the  right  of  a  people  to  institute  a  new 
government,  with  such  principles  and  with  such  an  organ- 
ization as  shall  seem  to  it  most  likely  to  secure  its  safety 
and  happiness. 

The  bulk  of  the  document  is  in  the  nature  of  a  preamble; 
the  declaration  itself  is  contained  in  the  final  paragraph,  and 
is  as  follows: 

"  We,  therefore,  the  representatives  of  the  United  States 
of  America,  in  general  congress  assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  inten- 
tions, do,  in  the  name,  and  by  the  authority  of  the  good 
people  of  these  colonies,  solemnly  publish  and  declare,  That 
these  united  colonies  are,  and  of  right  ought  to  be,  free  and 
independent  States;  that  they  are  absolved  from  all  alle- 
giance to  the  British  crown,  and  that  all  political  connection 
between  them  and  the  state  of  Great  Britain  is,  and  ought 


UNION   AND  INDEPENDENCE  35 

to  bo,  totally  dissolved;  and  that,  as  free  and  independent 
States,  they  have  full  power  to  levy  war,  conclude  peace, 
contract  alliances,  establish  commerce,  and  to  do  all  other 
acts  and  things  which  independent  States  may  of  right  do. 
And,  for  the  support  of  this  declaration,  with  a  firm  reliance 
on  the  protection  of  Divine  Providence,  we  mutually  pledge 
to  each  other  our  lives,  our  fortunes,  and  our  sacred 
honor." 

This  "declaration  was  not  only  the  announcement  of  the 
birth  of  a  people,  but  the  establishment  of  a  national  govern- 
ment; a  most  imperfect  one,  it  is  true,  but  still  a  government 
in  conformit}^  with  the  limited  constituent  powers  which 
each  colony  had  conferred  upon  its  delegates  in  congress. 
The  war  was  no  longer  a  civil  war;  Britain  was  become  to 
the  United  States  a  foreign  country.  Every  former  subject 
of  the  British  king  in  the  thirteen  colonies  now  owed  primary 
allegiance  to  the  dynasty  of  the  people,  and  became  a  citizen 
of  the  new  Republic;  except  in  this,  everything  remained  as 
before;  every  man  retained  his  rights;  the  colonies  did  not 
dissolve  into  a  state  of  nature,  nor  did  the  new  people 
undertake  a  social  revolution.  The  management  of  the 
internal  police  and  government  was  carefully  reserved  to 
the  separate  States,  which  could,  each  for  itself,  enter  upon 
the  career  of  domestic  reforms.  But  the  States  which  were 
henceforth  independent  of  Britain  were  not  independent  of 
one  another:  the  United  States  of  America,  presenting  them- 
selves to  mankind  as  one  people,  assumed  powers  over  war, 
peace,  foreign  alliances,  and  commerce."^ 

Topics. — Origin  of  sovereignty. — Adoption  of  the  Declaration 
of  Independence. — Nature  of  the  Declaration. — The  "self-evident 
truths  "  expressed  in  it. — Character  of  final  paragraph. 

*  Bancroft,  History  of  the  United  Stales,  iv,  452.  Note  that  the 
word  "  people  "  is  here  used  where  the  term  "  nation  "  would  more  cor- 
rectly express  the  idea  to  be  conveyed. 


36    THE  GOVERNMENT  OF  THE  UNITED  STATES 

References. — Bancroft,  History  oj  the  United  States,  iv,  452; 
Channing,  History  oj  the  United  States,  203-206;  McLaughlin, 
History  of  the  xhneriean  Natioji,  194-190;  Friedenwald,  The  Decla- 
ration oj  Independence,  99-207;  262-279. 

20.  The  New  Position. — The  Doclaration  of  Independ- 
ence, preceded  by  a  union  of  the  colonies  and  followed  by  a 
successful   war,  established  a  new  nation.     Allegiance  to 
the  sovereign  of  Great  Britain  was  dissolved,  and  a  new 
sovereign   w^as  coming  into  being.     The  change  was  not 
prescribed  by  law,  but  was  revolutionary.     The  supreme 
power  over  the  former  British  subjects  in  America  had  been 
held  by  the  king,  lords,  and  commons;  by  the  act  of  in- 
dependence this  power  was  assumed  by  some  part  or  parts 
of  the  community  thus  set  free.     But  one  may  not  easily 
determine  what  part  or  parts  became  clothed  with  the 
supreme  power,  and  thus  became  the  sovereign  in  the  new 
American  nation.     The  political  revolution  was  for  many 
years  in  process;  there  was  no  constitution,  no  settled  order 
of  procedure,  and  no  established  hierarchy  of  institutions. 
Between  the  act  of  independence  and  the  adoption  of  the 
Constitution  there  was  no  legal  description  of  the  holder  of 
supreme  power.     These  thirteen  years  were  the  years  of 
transition  from  the  established  sovereignty  of  Great  Britain 
to  the  dominion  of  the  sovereign  described  in  the  Constitu- 
tion of  the  United  States.     The  colonies  had  become  united. 
In  union  they  had  won  indej^endence,  and  had  won  it  for 
the  whole  people  as  one  body.     They  had  confirmed  this 
independence  by  a  treaty  of  peace  made  with  the  mother 
country  in  Paris,  in  1783.     A  congress  had  been  formed  and 
maintained,  and  this  was  the  only  institution  through  which 
the  will  of  the  whole  nation  found  expression.     And  this 
congress,  that  had  raised  an  army  and  appointed  a  com- 
mander in  chief,  that  was  the  source  of  all  military  power 
and  all  authority  in  general  legislation,  had  many  qualities 


UNION  AND  INDEPENDENCE  37 

of  the  legal  sovereign.  "  Unconsciously  to  themselves  the 
people  of  the  United  States  were  absorbed  into  a  new  na- 
tionality by  the  very  fact  of  their  combined  resistance  to 
Great  Britain.  They  carried  on  war;  they  officered  and 
maintained  armies;  they  commissioned  vessels  of  war;  they 
borrowed  money  and  issued  evidences  of  debt  therefor; 
they  created  prize  courts;  they  acquired  territory  and  de- 
termined what  the  nature  of  its  civilization  should  be;  they 
made  treaties  with  foreign  powers;  and  in  many  ways,  both 
before  and  after  the  adoption  of  the  Articles  of  Confedera- 
tion, they  exercised  the  highest  powers  of  sovereignty."^ 

Topics. — Process  of  forming  the  new  nation. — Duration  of  the 
Revolution. — Congress  as  the  sole  national  institution. 

References. — Bancroft,  History  of  the  United  States,  vi,  441- 
451 ;  Frothingham,  Rise  of  the  Republic,  5G1-G10. 

FOR  ADV.\NCED  STUDY 

The  New  England  Confederation,  1643. — Preston,  Docu- 
ments, 85-95;  Mac'Douald,  Select  Charters,  \,  94-101;  Fiske,  Begin- 
nings of  New  England,  155-160;  Palfrey,  History  of  New  England, 
i,  623-634;  Frothingham,  Rise  of  the  Republic,  33-71;  Hart,  Con- 
temporaries, i,  447-454. 

The  Colonial  Congress  at  Albany,  1754. — MacDonakI, 
Select  Charters,  i,  253-257;  Old  South  Leaflets,  9;  Franklin,  Auto- 
biography, 231-233;  Froth'mghun^,  Rise  of  the  Republic,  29,  131-151; 
Fiske,  New  France  and  New  England,  279,  280;  Hart,  Contempo- 
raries, ii,  357-300;  Bancroft,  United  States,  ii,  385-388. 

The  Continental  Congress. — Frothingham,  Rise  of  the  Re- 
public, 359-391 ;  Hildrcth,  United  States,  iii,  38-46;  Bancroft,  United 
States,  iv,  23,24,  30-36,  61-77;  Sloane,  The  French  War  and  The 
Revolution,  170-176;  Hart,  Contemporaries,  ii,  434-441;  Locky, 
History  of  England,  iii,  443-455;  Morse,  Adams,  Chap.  H;  Hosmer, 
Adams,  307-321;  J.  Adams,  Works,  i,  149-164;  ii,  365-400;  Mac- 
Donald,  Select  Charters,  i,  362-367. 

'  Miller,  Lectures,  36,  37. 

•■'I  <f '  ^ 


38    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  Second  Continental  Congress. — MacDonaid,  Select 
Charters,  i,  374-385;  Bancroft,  United  States,  iv,  190-192,  199,  200, 
204-213;  Morse,  Adams,  87-100;  Washington,  Writings,  ii,  476- 
493;  Adams,  Works,  ii,  415-418;  Lecky,  History  of  England,  i\\, 
465-472 -jFiske,  Anierican  Revolution,!,  132-136;  Lodge,  Washington, 
i,  131-133;  ^XosiXiG,  French  War  and  the  Revolution,  195-199;  H.  von 
Hoist,  Constitutional  Law,  6-12;  Johnston,  United  States,  56,  57; 
Frothingham,  Rise  of  the  Republic,  419-428. 

The  Declaration  of  Independence. — MacDonald,  Select 
Documents,  ii,  1-6;  Old  South  Leaflets,  3;  Larned,  Ready  Reference; 
Frothingham,  Rise  of  the  Republic,  513,  532-558;  Morse,  Jefferson, 
32-40,  and  Adams,  124-129;  Hildreth,  United  States,  iii,  132-138; 
Bancroft,  United  States,  iv,  112-125,  435-452;  Friedenwald,  The 
Declaration  of  hidependence. 

The  Treaty  of  Paris,  September  3,  1783. — MacDonald, 
Select  Documents,  i,  15-21 ;  Lecky,  History  of  England,  iv,  218-232, 
243-255,  273-289;  Morse,  Franklin,  357-365;  Bancroft,  United 
States,  V,  525-580;  Channing  and  Hart,  Guide  to  American  History, 
303,  304. 

The  Right  of  Revolution. — Cooley,  Constitutional  Law,  25, 
26;  Hart,  Actual  Government,  37. 

Political  Institutions  of  the  Colonies. — See  Channing 
and  Hart,  Guide  to  American  History,  312-314. 

Committees  of  Correspondence  and  their  Influence. — 

McLaughlin,  History  of  the  American  Nation,  183;  Sloane,  The 
French  War  and  the  Revolution,  161,  162;  Hart,  Formation  of  the 
Union,  57. 

The  Adoption  of  the  Articles  of  Confederation. — Hart, 
Contemporaries,  ii,  539-543;  Fiske,  The  Critical  Period,  Chap.  HI; 
Walker,  The  Making  of  the  Nation,  6;  Hart,  Formation  of  the 
Union,  93-95. 


CHAPTER  III 

UNDER    THE    ARTICLES    OF   CONFEDERATION 

21.  The  Articles  of  Confederation. — The  first  important 
step  toward  the  organization  of  a  national  government  was 
the  formation  of  the  Continental  Congress.  The  second 
step  was  the  adoption  of  the  Articles  of  Confederation. 
The  Articles  of  Confederation  were  framed  by  the  Congress 
and  proposed  to  the  legislatures  of  the  several  States. 
These  bodies  then  considered  and  approved  them,  and 
authorized  their  delegates  to  ratify  them  in  Congress.  On 
July  9,  1778,  the  delegates  of  eight  States  signed  a  form  of 
ratification  that  had  been  drawn  up  previously.  These 
States  were:  New  Hampshire,  Massachusetts,  Rhode  Island, 
Connecticut,  New  York,  Pennsylvania,  Virginia,  and  South 
Carolina.  The  other  States  ratified  the  articles  on  the 
following  dates:  North  Carolina,  July  21,  1778;  Georgia, 
July  24,  1778;  New  Jersey,  November  26,  1778;  Delaware, 
May  5,  1779;  Maryland,  March  1,  1781.  Maryland  had 
wished  to  withhold  her  ratification  until  Virginia  and  other 
States  should  surrender  to  the  Confederation  their  claims 
to  northwestern  lands.  Tlic  cession  of  tliose  lands  was, 
however,  not  completed  and  accepted  until  much  later. 
With  the  ratification  of  Maryland,  the  Articles  of  Confedera- 
tion became  the  Constitution,  or  the  fundamental  law,  of 
the  new  nation. 

The  need  of  a  general  constitution  was  seen  even  before 
the  adoption  of  the  Declaration  of  Independence.     On  Jujy 

39 


40         THE   GOVERNMENT  OF  THE  UNITED  STATES 

21,  1775,  Franklin  submitted  to  Congress  a  draft  of  Articles 
of  Confederation  and  Perpetual  Union.  This  project  was 
not  adopted;  but  a  year  later,  June  12,  1776,  Congress 
appointed  a  committee  of  thirteen,  one  member  from  each 
colony,  "  to  prepare  and  draft  the  form  of  a  confederation 
to  be  entered  into."  This  committee  reported  about  a 
month  after  its  appointment.  During  the  following  year 
the  form  it  had  drawn  up  was  amended,  and  adopted  by 
Congress,  November  15,  1777.  This  was  the  form  that  was 
proposed  to  the  legislatures  and  ultimately  ratified  by  the 
delegates  in  Congress.  The  name  of  this  nation  was  stated 
and  adopted  in  the  first  Article.  It  was,  "  The  United  States 
of  America."  Since  its  formation,  similar  names  have  been 
adopted  by  other  nations  on  this  continent.  The  United 
States  of  Mexico,  the  United  States  of  Colombia,  the  United 
States  of  Venezuela,  and  the  United  States  of  Brazil  have 
apparently  imitated  the  title  of  this  nation. 

Under  the  Articles  of  Confederation  each  of  the  States 
in  the  Union  retained  "  every  power,  jurisdiction,  and  right " 
which  was  not  expressly  delegated  to  Congress.  A  similar 
provision  was  embodied  in  Article  10  of  amendments  of  the 
Constitution  of  1787.  According  to  this  article  of  the  Con- 
stitution, "the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."  One 
difference  between  these  two  fundamental  laws,  the  Articles 
of  Confederation  and  the  Constitution,  in  this  regard,  was 
that  less  power  was  delegated  to  the  United  States  by  the 
Articles  of  Confederation  than  by  the  Constitution.  This 
first  union  of  the  States  was  called  a  "league  of  friendship  " 
"for  their  common  defense,  the  security  of  their  liberties, 
and  their  mutual  and  general  welfare  "  (Article  3).  Among 
the  States  there  was  to  be  freedom  of  trade  and  freedom 
of  ingress  and  egress  for  persons  (Article  4);  and  the  free 
inhabitants  of  each  State  were  "entitled  to  all  privileges 


UNDER  THE  ARTICLES  OF  CONFEDERATION  41 

and  immunities  of  free  citizens  in  the  several  States" 
(Article  4).  This  provision  helped  to  strengthen  the  sense 
of  common  nationality. 

The  government  established  by  the  Articles  of  Confedera- 
tion was  extremely  simple  in  form.  A  single  representative 
body,  called  the  General  Congress,  held  all  the  powers, 
executive,  legislative,  and  judicial,  that  had  been  granted 
to  the  United  States.  The  Congress  was  composed  of  dele- 
gates appointed  annually  by  the  States,  in  such  manner 
as  each  State  might  direct.  Each  State  might  recall  its 
delegates,  or  any  of  them,  at  any  time  within  the  year,  and 
send  others  in  their  stead  for  the  remainder  of  the  year. 
No  State  could  be  represented  by  less  than  two  delegates 
nor  by  more  than  seven;  and  no  person  could  be  a  delegate 
for  more  than  three  years  in  any  period  of  six  years.  No 
delegate  could  hold  any  ofhce  under  the  United  States,  to 
which  was  attached  a  salary  or  emolument  of  any  kind. 
Each  State  maintained  its  delegates;  and  in  determining 
questions  in  Congress  each  State  had  one  vote,  whatever 
the  number  of  its  delegates.  All  bills  affecting  international 
relations,  money,  and  credit,  or  revenues  for  carrying  on  the 
Government,  required  the  votes  of  at  least  nine  States.  The 
Congress  met  every  year,  the  session  beginning  on  the  first 
Monday  in  November;  and  it  might  not  adjourn  for  more 
than  six  months.  It  had  authority  to  appoint  such  com- 
mittees and  civil  officers  as  might  be  necessary  for  managing 
the  affairs  of  the  United  States.  The  Congress  might 
appoint  one  of  their  number  to  preside,  provided  that  no 
person  should  be  allowed  to  serve  in  the  office  of  president 
more  than  one  year  in  any  term  of  three  years  (Article  9). 
In  the  recess  of  Congress,  the  government  was  carried  on 
by  a  "Committee  of  the  States,"  consisting  of  one  delegate 
from  each  State.  The  conduct  of  the  several  departments 
by  committees  soon  made  evident  their  inefficiency,  and  the 
necessity  of  individual  heads  of  departments. 


42         THE   GOVERNMENT  OF  THE  UNITED  STATES 

Under  the  Articles  of  Confederation,  the  State  could  not 
enter  into  any  treaty  or  alliance  with  a  foreign  power 
without  the  consent  of  Congress;  it  could  not  maintain  a 
naval  or  a  military  force,  except  militia  for  the  defense  of 
the  State  and  its  trade;  it  could  not  engage  in  any  war 
without  the  consent  of  Congress,  unless  its  territory  was 
actually  invaded  by  enemies  or  was  in  imminent  danger  of 
invasion.  In  case  a  military  force  was  raised  by  any  State 
for  common  defense,  the  legislature  of  the  State  was  em- 
powered to  appoint  all  officers  of,  or  under,  the  rank  of 
colonel.  In  such  a  case,  all  expenses  incurred  for  the 
common  defense  or  general  welfare,  and  allowed  by  Congress, 
were  defrayed  out  of  the  common  treasury,  which  was  sup- 
plied by  the  several  States  in  proportion  to  the  value  of 
their  real  estate.  The  taxes  for  raising  the  State's  con- 
tribution to  the  general  treasury  were  levied  by  authority 
of  the  State's  legislature. 

The  Congress  was  the  sole  important  organ  of  the  Con- 
federation. It  alone  had  authority  to  deal  wath  external 
relations;  it  was  empowered  to  make  war  and  peace;  it 
could  send  and  receive  ambassadors;  it  could  negotiate 
treaties  and  alliances;  it  was  empowered  to  control  captures 
and  prizes  made  by  the  land  or  naval  forces  of  the  United 
States;  and  it  could  establish  courts  for  the  trial  of  piracies 
and  other  crimes  committed  on  the  high  seas.  The  Con- 
gress was  the  final  authority  in  all  boundary  disputes  be- 
tween States,  and  in  all  controversies  concerning  land 
titles.  It  could  control  coinage,  fix  weights  and  measures, 
regulate  trade  with  the  Indians,  establish  and  manage  post 
offices,  and  govern  and  direct  the  land  and  naval  forces. 
In  carrying  out  its  legitimate  functions  Congress  was  re- 
strained, and  its  practical  power  greatly  curtailed,  by  the 
requirement  of  a  two-thirds  vote  for  adopting  all  important 
measures,  and  by  the  fact  that  the  treasury  of  the  Confedera- 
tion was  supplied  not  by  taxes  imposed  by  Congress,  but  by 


UNDER  THE  ARTICLES  OF  CONFEDERATION  43 

contributions  from  taxes  levied  by  the  legislatures  of  the 
several  States.  The  legislatures  of  the  States,  moreover, 
could  control  the  commerce  of  the  country.  They  could 
levy  any  import  or  export  duties  they  thought  advisable, 
provided  they  did  not  thereby  interfere  "  with  any  treaties 
then  proposed,  or  touch  the  property  of  the  United  States, 
or  that  of  any  other  State.  The  United  States  had  no 
power  of  taxation,  direct  or  indirect." 

The  Articles  of  Confederation  had  many  weak  points. 
The  first  was  that  the  vote  of  nine  States  was  required  for 
making  any  important  law.  The  second  was  the  im- 
possibility of  establishing  a  consistent  national  policy  with 
respect  to  commerce.  The  third  was  the  fact  that  the  Gen- 
eral Government  had  no  independent  source  of  revenue,  and 
consequently  no  independent  means  of  enforcing  its  will. 
All  its  revenues  were  contributions  by  the  States.  There 
was  the  form  of  a  national  government,  but  the  necessary 
powers  were  wanting.  Congress  could  not  act  upon  the 
individual  citizens;  it  could  reach  them  only  through  the 
States.  It  could  make  treaties  with  foreign  powers,  but  it 
could  not  enforce  them.  It  might  demand  soldiers  from 
the  States,  but  it  could  not  coerce  the  States  to  accede  to 
these  demands. 

These  elements  of  weakness  were  sufficient  causes  of  the 
failure  of  the  Articles  of  Confederation  as  the  fundamental 
law  of  the  new  state. 

Topics. — First  step  toward  organization  of  a  national  govern- 
moiit. — Second  step. — Making  the  Articles  of  Confederation. — 
HalifR'ation  by  States. — Maryland's  reason  for  delay. — Franklin's 
draft. — Formation  of  the  draft  that  was  adopted. — Power  of  States 
under  Articles  of  Confederation. — How  different  from  their  powers 
under  the  Constitution. — Relation  of  States  to  one  another. — Nature 
of  the  government  estal:)lished. — Delegates. — Voting. — Times  of 
meeting. — Presiding  ofhcer. — Government  between  sessions. — Posi- 
tion of  the  State. — Powers  of  Congi-ess  under  the  Articles  of  Con- 


44         THE  GOVERNxMENT  OF  THE  UNITED  STATES 

federation. — Restrictions  on  powers  of  Congress. — Weak  points  in 
Articles  of  Confederation. 

References.— Curtis,  Constitutional  History  of  the  United  States 
i,  94-103;  Fiske,  The  Critical  Period  of  American  History,  93-  Ar- 
ticles of  Confederation;  Bancroft,  United  States,  v,  201-208-  Fiske 
Civil   Government,   213-220;  Hart,  Actual  Government,  49;  Lalor' 
Cyclopadia,  i,  574;  Macy,  Our  Government,  38;  Miller,  Lectures,  3; 
Frothingham,  Rise  of  the  Republic,  569-584. 

22.  State  Constitutions  under  the  Articles  of  Confedera- 
tion.— After  independence  had  been  declared,  it  became 
necessary  to  reconstruct  the  governments  of  the  States. 
The  States  were  starting  on  a  new  political  career,  with 
a  new  theory  as  to  the  source  of  supreme  power.  They 
could  no  longer  make  use  of  the  idea  that  power  descended 
to  them  from  the  king;  but  they  held  that  power  resided 
originally  in  the  people,  and  that  officers  of  government 
who  exercised  it  derived  it  from  the  people.  The  accept- 
ance of  this  view  was  the  most  important  part  of  the 
Revolution.  Long  before  this  time,  it  had  been  customary 
'in  England  to  elect  some  of  the  members  of  Parliament — 
namely,  the  members  of  the  House  of  Commons;  but,  under 
the  law,  the  king  had  the  right  of  absolute  veto,  which  was 
a  sufficient  indication  that  the  supreme  legal  authority  was 
not  in  the  people.  Through  the  Revolution  the  thirteen 
colonies  had  become  thirteen  States,  and  were  obliged  to 
modify  their  constitutions  and  adapt  them  to  their  new 
position.  The  reforms  of  the  State  governments  were 
undertaken  on  the  recommendation  of  the  General  Congress. 
Provisional  changes  were  made  in  the  government  of  Massa- 
chusetts in  July,  1775;  in  the  government  of  New  Hampshire 
in  January,  1776;  and  in  the  government  of  South  Carolina 
in  March,  1776.  The  permanent  new  constitutions,  or 
the  constitutions  with  their  permanent  modifications,  were 
adopted  in  the  several  States  as  follows:  In  New  Jersey, 
Delaware,  Pennsylvania,  Maryland,  and  North  Carolina,.in 


UNDER  THE  ARTICLES  OF  CONFEDERATION  45 

1776;  in  Georgia  and  New  York,  in  1777;  in  South  Carolina, 
in  1778;  in  Massachusetts,  in  1780;  in  New  Hampshire,  in 
1784;  and  in  Rhode  Island,  Connecticut,  and  Virginia,  much 
later. 

Under  the  State  constitutions,  while  the  Articles  of 
Confederation  were  in  force,  the  age  of  twenty-one  was 
everywhere  required  as  a  condition  of  voting.  Residence 
in  the  town  or  district  also  was  required,  except  in  Virginia 
and  South  Carolina.  In  these  States,  "it  was  enough  to 
own  in  the  district  or  town  a  certain  freehold  or  'lot.'"  In 
Virginia,  South  Carolina,  and  Georgia  only  white  men 
could  vote;  but  in  South  Carolina  the  octoroon,  although 
descended  from  a  slave,  enjoyed  this  privilege.  The 
question  of  color  was  not  raised  in  the  other  ten  States. 
Any  white  inhabitant  ''of  any  mechanic  trade"  could  vote 
in  Georgia;  but  in  each  of  the  other  States  the  possession  of 
a  certain  amount  of  property  was  required.  In  Massa- 
chusetts it  was  an  amount  equivalent  to  S200;  in  Georgia, 
to  $250.  In  some  of  the  colonics  membership  in  the  Church 
had  been  required  as  a  condition  prerequisite  for  exercising 
political  rights.  But  in  the  course  of  time  this  qualification 
was  dropped,  and  the  public  affairs  of  the  various  groups 
were  organized  on  a  purely  secular  basis. 

Topics. — Need  of  reconstructing  governments  of  States. — New 
source  of  power. — Source  of  governmental  power  in  England. — 
Provisional  and  permanent  changes  in  State  constitutions. — Voting 
in  States  under  Articles  of  Confederation. 

References. — Hinsdale,  American  Government,  79;  Channing 
and  Hart,  Guide,  300-308. 

23.  The  State  Legislatures. — The  assemblies  of  the  colo- 
nies remained  as  the  lower  houses  of  the  legislatures  of  the 
States.  Their  times  of  meeting  and  periods  of  election  were 
more  definitely  fixed,  and  a  more  equitable  distribution 
of  representation  was  established.     In  New  England,  the 


46         THE  GOVERNMENT  OF   THE  UNITED  STATES 

towns  continued  to  elect  representatives;  in  Virginia,  the 
counties  and  boroughs.  In  South  Carolina  the  members 
of  the  assembly  were  elected  for  two  years;  in  all  other 
States  they  were  elected  for  one  year. 

Eleven  of  the  States  maintained  legislatures  of  two 
houses.  Pennsylvania  and  Georgia  placed  all  legislative 
power  in  a  single  house.  Pennsylvania  was  moved  in  this 
matter  by  the  influence  of  Franklin.  The  senate  as  it 
existed  in  the  other  States  had  different  terms.  The  term 
of  election  to  the  senate  was  one  year,  in  six  States;  two 
years,  in  South  Carolina;  three  years,  in  Delaware;  four 
years,  in  New  York  and  Virginia;  and  five  years,  in  Mary- 
land. In  New  York  and  Virginia  the  senate  renewed  one- 
fourth  of  its  members  each  year;  in  Delaware,  one-third  of  its 
members  each  year.  Maryland  elected  her  senators  by  an 
indirect  election  once  in  five  years,  and  left  the  members  to 
fill  any  vacancy  that  might  occur  between  the  stated  periods 
of  election. 

Topics. — State  legislatures  under  Articles  of  Confederation. — 
Bicameral  system. — The  State  senates. 

References. — Channing  and  Hart,  Guide,  306-308. 

24.  The  Governors  of  States. — Both  direct  and  indirect 
elections  were  employed  in  choosing  governors.  In  the  New 
England  States  the  people  voted  for  the  governor  directly. 
In  New  York  the  governor  was  elected  by  owners  of  free- 
holds that  were  each  worth  at  least  $250.  In  Georgia,  he 
was  elected  by  representatives  of  the  people;  in  Pennsyl- 
vania, by  the  council  and  the  assembly  voting  together; 
and  in  the  other  six  States,  by  a  joint  ballot  by  the  two 
houses  of  the  legislature. 

Certain  property  qualifications  were  required  for  gov- 
ernors, for  senators,  and  for  representatives,  except  in 
Pennsylvania.  In  New  York  the  governor  was  required  to 
be  a  freeholder.     In  Massachusetts  he  should  have  a  free- 


UNDER  THE  ARTICLES  OF  CONFEDERATIOxN  47 

hold  worth  about  $3,300;  in  New  Hampshire,  a  freehold 
worth  about  half  this  sum;  in  South  Carolina,  a  plantation 
worth,  including  slaves,  about  $43,000.  The  governor  was 
chosen  in  New  York  and  Delaware  for  three  years;  in  South 
Carolina,  for  two  years;  and  in  all  the  other  States,  for  one 
year.  The  Southern  States  placed  restrictions  on  the  reelec- 
tion of  the  governors;  but  in  Massachusetts,  Connecticut, 
and  Rhode  Island  they  were  often  reelected  for  a  number 
of  years  in  succession.  In  most  of  the  States  the  governor 
was  given  no  power  of  veto;  but  in  Massachusetts  he  was 
given  the  limited  veto  that  had  been  devised  in  New  York 
and  there  placed  in  the  hands  of  the  council.  A  bill  might 
be  passed  over  the  veto  of  the  governor  of  Massachusetts, 
provided  a  majority  of  two-thirds  of  each  house  voted  for 
it  when  presented  after  the  veto. 

The  spirit  that  animated  the  people  of  the  new  States 
was  quite  as  noteworthy  as  the  institutions  they  created. 
Their  establishment  of  religious  liberty  and  their  determina- 
tion that  the  church  should  be  separated  from  the  state 
marked  the  beginning  of  a  new  course  in  social  progress. 

Topics. — Methods  of  election. — Qualifications  required  of  gov- 
ernors.— Terms  of  governors. — The  veto. — Spirit  of  the  pcoi:)le. — 
Religious  liberty. 

References. — Hart,  Actual  Government,  27 ;  McLaughlin, 
History  of  the  American  Nation,  54-59,  65. 

25.  The  Weakness  of  the  General  Government,  and  the 
Remedy. — The  General  Government  under  the  Articles  of 
Confederation  had  less  power  than  the  Continental  Con- 
gress might  have  exercised  before  the  adoption  of  these 
Articles.  The  Continental  Congress,  in  its  great  under- 
taking, was  practically  a  sovereign  body.  It  was  "  possessed 
of  such  large,  indefinite  powers,  that,  upon  principles  of 
public  necessity,  it  miglit  have  assumed,  in  a  great  emer- 
gency, to  hold  a  direct  relation  to  the  internal  concerns  of 


48        THE   GOVERNMENT  OF  THE   UNITED   STATES 

any  colony."  The  Articles  of  Confederation  had  curtailed 
this  power.  The  central  authority  could  not  touch  the 
individual  citizen,  nor  could  "it  act  upon  the  internal 
concerns  or  conditions  of  a  State."  The  central  Govern- 
ment manifested  its  weakness,  especially  in  three  ways: 

1.  In  its  attitude  toward  internal  affairs,  particularly 
toward  popular  disturbances  in  the  several  States.  These 
disturbances  showed  some  of  the  people  mistaking  them- 
selves for  the  whole  people.  Under  this  delusion,  a  mmor- 
ity  in  Massachusetts,  finding  that  the  institutions  bore 
heavily  upon  them,  concluded  that  they  were  the  people, 
and  that  they  could  set  aside  the  institutions  which  the 
people  had  created.  The  citizens  had  apparently  learned 
to  desire  liberty,  but  they  had  not  learned  to  respect  the 
will  of  the  majority.  The  fears  that  were  excited  by  these 
popular  disturbances,  especially  by  Shay's  rebellion,  made 
it  evident  that  the  hberty  which  had  been  won  was  en- 
dangered by  the  lack  of  authority.  Out  of  this  thought 
rose  the  demand  for  a  more  effective  national  government. 

2.  In  its  inability  to  control  the  foreign  affairs  of  the 
country,  particularly  the  trade  with  foreign  nations  and 
the  trade  among  the  several  States.  The  power  to  regulate 
trade  was  in  the  hands  of  the  States,  and  was  subject  to  the 
single  restriction  that  the  States  should  not  levy  imposts  or 
duties  that  might  interfere  with  the  stipulations  in  any 
treaties  made  "in  pursuance  of  any  treaties  already  pro- 
posed by  Congress  to  the  courts  of  France  and  Spain." 

3.  In  its  lack  of  authority  to  manage  and  dispose  of 
public  lands  and  to  admit  new  States  into  the  Union. 

Washington,  as  commander  in  chief  of  the  Colonial 
Army,  was  in  a  position  to  see  clearly  the  weakness  of  the 
organization  provided  by  the  Articles  of  Confederation  and 
was  persistent  in  his  advocacy  of  a  stronger  central  govern- 
ment. The  Confederation  appeared  to  him  to  be  little 
more  than  the  shadow  without  the  substance,  and  Congress 


UNDER  THE  ARTICLES  OF  CONFEDERATION         49 

merely  a  nugatory  body.  Hamilton  declared  that  the 
Confederation  was  "unequal  to  a  vigorous  prosecution  of 
the  war,  or  to  the  preservation  of  the  Union  in  peace." 
An  attempt  on  the  part  of  the  Confederation  to  coerce  the 
States  would  probably  have  resulted  in  a  dissolution  of  the 
Union.  The  incapacity  of  the  Government  became  more 
manifest  from  month  to  month;  and,  in  view  of  its  help- 
lessness, an  increasing  number  of  persons  accepted  the  idea 
that  a  new  constitution  was  needed  to  insure  the  welfare 
of  the  nation.  In  January,  1784,  Washington  wrote  that 
an  extension  of  Federal  powers  "would  make  us  one  of  the 
most  wealthy,  happy,  respectable,  and  powerful  nations 
that  ever  inhabited  the  terrestrial  globe.  Without  this, 
we  shall  soon  be  everything  which  is  the  direct  reverse." 
"For  my  own  part,  although  I  am  returned  to,  and  am  now 
mingled  with,  the  class  of  private  citizens,  and  like  them 
must  suffer  all  the  evils  of  a  tyranny,  or  of  too  great  exten- 
sion of  federal  powers,  I  have  no  fears  arising  from  this 
source,  in  my  mind;  but  I  have  many,  and  powerful  ones 
indeed,  which  predict  the  worst  consequences  from  a  half- 
starved,  limping  government,  that  appears  to  be  always 
moving  upon  crutches  and  tottering  at  every  step.-"! 
Among  the  reasons  for  establisliing  a  stronger  central 
government,  four  were  especially  conspicuous:  (1)  To  reg- 
ulate the  foreign  commerce  of  the  country;  (2)  to  control 
and  colonize  the  pubUc  domain;  (3)  to  provide  independent 
means  for  acquiring  a  revenue;  (4)  to  subject  domestic 
trade  to  just  and  uniform  regulations  and  to  put  an  end  to 
the  tariff  war  among  the  States.  Without  adequate  powers 
respecting  these  matters,  the  Confederation  was  falling 
into  ruins.  There  seemed  to  be  nothing  before  it  but  the 
prospect  of  speedy  dissolution.  The  formation  and  adop- 
tion of  a  new  fundamental  law  appeared  to  be  necessary 


*  Washington  to  Harrison,  Jan.  18,  1784. 


50        THE   GOVERNMENT   OF   THE   UNITED   STATES 

to  insure  good  government  and  the   continuance  of  the 
Union. 

Topics.— Continental  Congress  before  the  Articles  of  Confedera- 
tion.— Weakness  of  the  central  Government  respecting  internal  dis- 
turbances; respecting  foreign  affairs;  respecting  disposal  of  public 
lands. — Washington's  view  of  its  weakness. — Reasons  for  establish- 
ing stronger  central  government. 

References.— Fiske,  Civil  Government,  216-220;  Miller,  Lec- 
tures, 3-5,  21,  22;  Articles  of  Confederation. 

26.  The  Constitutional  Convention. — The  full  coopera- 
tion of  the  several  colonies  necessary  to  make  a  new  con- 
stitution possible  was  reached  only  by  a  slow  advance.  In 
1785  commissioners  from  Maryland  and  Virginia  met  to 
regulate  the  navigation  of  Chesapeake  Bay  and  other  waters 
common  to  these  two  States.  But  it  became  evident  that 
they  could  not  reach  the  proposed  object  without  the 
cooperation  of  the  other  States.  This  failure  furnished  an 
additional  reason  for  a  closer  union.  In  January,  1786, 
the  legislature  of  Virginia  appointed  eight  commissioners 
to  meet  with  the  commissioners  from  other  States  to  con- 
sider matters  relating  to  the  regulation  of  trade.  The  com- 
missioners were  required  to  report  to  the  several  States  a 
bill  covering  this  subject,  with  the  purpose  of  having  it 
adopted  by  the  States,  thus  providing  for  a  common  policy 
to  be  carried  out  by  Congress.  The  proposed  meeting  was 
held  in  September,  1786,  at  Annapolis.  Commissioners 
were  present  from  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  and  Virginia — five  States.  The  Annapolis  meet- 
ing went  beyond  its  original  purpose  and  recommended  a 
general  convention  of  the  States,  to  be  held  in  Philadelphia 
on  the  second  Monday  in  May,  1787.  The  purpose  of  the 
Philadelphia  meeting,  as  stated  in  the  resolution  recom- 
mending it,  was  "  to  take  into  consideration  the  situation  of 
the  United  States,  to  devise  such  further  provisions  as  shall 


UNDER  THE   ARTICLES  OF  CONFEDERATION         51 

appear  to  them  necessary  to  render  the  Constitution  of 
the  Federal  Government  adequate  to  the  exigencies  of  the 
Union,  and  to  report  such  an  act  for  that  purpose  to  the 
United  States  in  Congress  assembled  as,  when  agreed  to  by 
them,  and  afterward  confirmed  by  the  legislatures  of  every 
State,  will  effectually  provide  for  the  same." 

The  Annapolis  meeting  sent  reports  of  its  action  to  the 
several  States  and  to  Congress.  In  February,  1787,  Con- 
gress adopted  the  idea  of  a  general  convention,  and  em- 
bodied it  in  the  following  resolution: 

"That,  in  the  opinion  of  Congress,  it  is  expedient  that 
on  the  second  Monday  in  May  next  a  convention  of  delegates, 
who  shall  have  been  appointed  by  the  several  States,  be 
held  at  Philadelphia,  for  the  sole  and  express  purpose  of 
revising  the  Articles  of  Confederation,  and  reporting  to 
Congress  and  the  several  legislatures  such  alterations  and 
provisions  therein  as  shall,  when  agreed  to  in  Congress  and 
confirmed  by  the  States,  render  the  Federal  Constitution 
adequate  to  the  exigencies  of  government  and  the  preserva- 
tion of  the  Union." 

All  the  States  but  Rhode  Island  acted  on  the  resolution 
of  Congress  and  sent  delegates  to  the  convention.  There 
was  no  restriction  on  the  number  of  delegates  the  several 
States  could  send;  but  two  were  necessary  to  entitle  the 
State  to  vote. 

The  convention  which  assembled  in  obedience  to  this 
call  by  Congress  was  organized  in  May,  1787.  It  elected 
George  Washington  president  of  the  convention,  and 
adopted  the  method  of  voting  that  had  been  used  in  Con- 
gress. It  was  the  will  of  the  convention  that  nothing 
spoken  in  the  meetings  should  "  be  printed  or  otherwise 
published  without  leave."  It  was  very  early  seen  that 
the  desired  end  could  not  be  reached  by  simply  amending 
the  Articles  of  Confederation,  but  that  an  essentially  new 
fotm  of  government  must  be  provided.     As  a  result  of  the 


52        THE   GOVERNMENT  OF  THE  UNITED  STATES 

labors  of  the  convention  during  the  four  months  of  its 
sessions,  it  sent  to  Congress  in  September  the  form,  or 
draft,  of  a  new  constitution.  The  convention  sent  to  Con- 
gress also  resolutions  recommending  that  the  draft  of  the 
Constitution  should  be  submitted  to  State  conventions  for 
their  consideration  and  ratification.  The  resolutions  trans- 
mitting the  draft  of  the  Constitution  to  Congress  were  as 
follows : 

"In  Convention,  Monday,  September  17,  1787. 

"Resolved,  That  the  preceding  Constitution  be  laid  be- 
fore the  United  States  in  Congress  assembled,  and  that  it 
is  the  opinion  of  this  convention  that  it  should  afterward 
be  submitted  to  a  convention  of  delegates,  chosen  in  each 
State  by  the  people  thereof,  under  the  recommendation  of 
its  legislature,  for  their  assent  and  ratification;  and  that 
each  convention,  assenting  to  and  ratifying  the  same, 
should  give  notice  thereof  to  the  United  States  in  Congress 
assembled. 

"  Resolved,  That  it  is  the  opinion  of  this  convention  that, 
as  soon  as  the  conventions  of  nine  States  shall  have  ratified 
this  Constitution,  the  United  States  in  Congress  assembled 
should  fix  a  day  on  which  electors  should  be  appointed  by 
the  States  which  shall  have  ratified  the  same,  and  a  day  on 
which  the  electors  should  assemble  to  vote  for  the  President, 
and  the  time  and  place  for  commencing  proceedings  under 
this  Constitution.  That  after  such  publication  the  electors 
should  be  appointed,  and  the  senators  and  representatives 
elected;  that  the  electors  should  meet  on  the  day  fixed 
for  the  election  of  the  President,  and  should  transmit  their 
votes,  certified,  signed,  sealed,  and  directed,  as  the  Con- 
stitution requires,  to  the  secretary  of  the  United  States  in 
Congress  assembled;  that  the  senators  and  representatives 
should  convene  at  the  time  and  place  assigned;  that  the 
senators  should  appoint  a  President  of  the  Senate  for  the 
sole  purpose  of  receiving,  opening,  and  counting  the  votes 


UNDER  THE  ARTICLES  OF  CONFEDERATION         53 

for  President;  and  that,  after  he  shall  be  chosen,  the  Con- 
gress, together  with  the  President,  should,  without  delay, 
proceed  to  execute  this  Constitution. 

"  By  the  unanimous  order  of  the  convention. 

"George  Washington,  President. 

"William  Jackson,  Secretary." 

Topics. — Maryland  and  Virginia  commissioners  meet,  1785. — 
Annapolis  meeting,  1786. — Philadelphia  meeting,  1787. — Resolu- 
tion by  Congress,  1787. — Constitutional  Convention  organized,  1787- 
— Washington's  part  in  the  convention. — Duration  and  work  of 
the  convention. — Resolution  submitting  completed  draft. 

References. — Bryce,  American  Commonwealth,  \,  21-25;  Fiske, 
Civil  Government,  217;  Hart,  Actual  GovernmaU,  50;  Hinsdale, 
American  Government,  87-106;  Lalor,  Cyclopo'dia,  i,  626-637;  ii, 
672;  Macy,  Our  Government,  38-41;  Bancroft,  United  States,  vi, 
Book  III;  Frothingham,  Rise  of  the  Republic,  587-610. 

27.  The  Adoption  of  the  Constitution. — By  the  seventh 
article  of  the  proposed  Constitution  the  convention  had 
agreed  that  the  ratification  of  the  conventions  of  nine 
States  should  be  sufficient  to  establish  the  Constitution  and 
make  it  valid  for  the  States  ratifying  it.  The  first  nine 
States  ratified  the  Constitution  on  the  following  dates: 

Delaware,  November  7,  1787; 

Pennsylvania,  December  12,  1787; 

New  Jersey,  December  18,  1787; 

Georgia,  January  2,  1788; 

Connecticut,  January  9,  1788; 

Massachusetts,  February  6,  1788; 

Maryland,  April  28,   1788; 

South  Carolina,  May  23,  1788; 

New  Hampshire,  June  21,  1788. 

With  the  adoption  by  New  Hampshire,  the  form  drawn 
up  by  the  convention  was  established  as  the  Constitution 
of  the  United  States  of  America.     The  other  States  ratified 


54   THE  GOVERNMENT  OF  THE  UNITED  STATES 

it  a  little  later;  Virginia,  on  June  26,  1788,  and  New  York, 
on  July  26,  1788.  Information  of  the  ratification  by  North 
Carolina  and  Rhode  Island  was  not  received  by  Congress 
until  1790.1 

The  adoption  of  the  Constitution  completed  the  Revolu- 
tion. A  new  nation  had  come  into  existence  and  organized 
for  itself  a  national  government. 

A  new  central  government  was  formed  by  the  adoption 
of  the  Constitution.  This  new  Government  was  more  in- 
dependent than  that  which  had  existed  under  the  Articles 
of  Confederation.  It  was  not  obliged  to  ask  the  several 
States  for  money  with  which  to  meet  its  expenses,  for  it 
could  tax  the  people  directly.  It  could  reach  individual 
citizens  in  many  ways.  It  could  arrest  them  for  crime  and 
bring  them  for  trial  before  its  courts;  it  could  call  them 
into  the  army  and  the  navy.  It  could,  moreover,  declare 
war  and  make  peace.  It  (iould  regulate  commerce  with 
foreign  nations,  among  the  States,  and  with  the  Indian 
tribes.  Besides  the  central  Government  there  existed  at 
this  time  also  the  governments  of  the  States,  the  govern- 
ments of  the  counties,  the  governments  of  the  towns  and 
cities.  These  forms  of  government,  with  slight  modifica- 
tions, have  continued  to  the  present.  They  are  all  popular 
governments;  that  is,  the  power  which  is  exercised  by  their 
officers  is  derived  from  the  people.  If  we  examine  them, 
we  shall  find  that  they  are  all  representative  governments. 
The  officers  are  elected  from  the  people  by  the  people,  and 
are  elected  for  a  definite  and  specified  term.  Under  the 
Articles  of  Confederation,  the  States  had  united  "  for  their 
common  defense,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare."  A  somewhat  more  specific 
purpose  of  the  new  Government  was  set  forth  in  the  preamble 
to  the  Constitution.    It  was  as  follows:   (1)  To  form  a  more 

^  The  date  of  the  ratification  by  North  Carolina  was  November  21, 
1789;  by  Rhode  Island,  May  29,  1790. 


UNDER  THE  ARTICLES  OF  CONFEDERATION         55 

perfect  union;  (2)  to  establish  justice;  (3)  to  insure  domestic 
tranquillity;  (4)  to  provide  for  the  common  defense;  (5)  to 
promote  the  general  welfare;  (G)  to  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity. 

Topics. — Approval  of  nine  States  needed  to  make  Constitutjion 
valid. — Dates  of  ratification. — Completion  of  the  Revolution. — 
Character  of  the  government  provided  for  by  the  Constitution. — 
Specific  purposes  declared  in  the  preamble. 

References. — Bryce,  American  Commonwealth,  i,  25-28; 
Hinsdale,  American  Government,  lOG-117;  Macy,  Our  Government, 
38-41;  Miller,  Lectures,  9-21;  Bancroft,  United  States,  vi,  Book  IV. 

FOR  ADVANCED  STUDY 

Preparation  and  Adoption  of  the  Articles  of  Confeder- 
ation.— MacDonald,  Select  Documents,  G-15;  Curtis,  Condilutional 
History,  i,  124-141;  American  Historical  Association,  1894,  227-2.36; 
Fiske,  The  Critical  Period,  55-63,  90-94;  American  History  Leaflets, 
7,  20,  28;  Old  South  Leaflets,  2;  Hart,  Introduction  to  Federal 
Government,  1-86. 

Weakness  of  the  Confederation. — Madison,  Letters,  i,  320- 
328;  The  Federalist,  No.  15,  21,  22;  Fiske,  The  Critical  Period,  94- 
105;  McMaster,  United  States,  i,  130-139;  Lod^e,  Hamilton,  ^Q>~AQ>; 
Hart,  Contemporaries,  iii,  120-122,  125-137,  177-182,  195-197. 

The  Cession  of  Western  Territory  by  the  States  CIaim= 

ing  It. — Hinsdale,  Old  NortJncest,  Chap.  XI-XHI;  Donaldson,  The 
Public  Domain,  Chap.  Ill;  Roosevelt,  The  Win7iing  of  the  West,  iii, 
243-251;  Fiske,  The  Critical  Period,  187-196;  King,  Ohio,  161- 
173;  Hart,  Contem'poraries,  iii,  138-142;  Madison,  Letters,  i,  136-140. 

The   Government   of    the    Northwest  Territory. — The 

Ordinance  of  1787,  Old  South  Leaflets,  13;  Larned,  Ready  Reference; 
MacDonald,  Select  Documents,  21-29;  Hinsdale,  Old  Northwest, 
Chap.  XV;  Cutk^r,  Manasseh  Cutler,  i.  Chap.  IV-XII;  Wiiisor, 
Westward,  Chap.  XIV;  No7-th  Americaii  Review  (Poole),  April,  1876; 
Drake,  Ohio  Valley  States,  153-172;  Dunn,  Indiana,  Chap.  V;  King, 
Ohio,  Chap.  VIII;  Hart,  Contemporaries,  iii,  154-158;  Donaldson, 
The  Public  Domain,  149-159. 


56        THE   GOVERNMENT   OF  THE   UNITED  STATES 

The  Calling  of  the  Constitutional  Convention. — Hunt, 
Lije  of  James  Madison,  Chap.  X-XIV ;  Bancroft,  United  States,  vi, 
182-203;  Fiske,  The  Critical  Period,  212-222;  McMaster,  United 
States,  i,  389-399;  Gay,  James  Madison,  55-63;  Curtis,  Constitu- 
tional History,  i,  340-368;  Schouler,  United  States,  i,  32-39. 

The  Making  of  the  Draft  of  the  Constitution.— Elliot, 

Debates;  IMadison,  Letters,  i,  343-355;  Washington,  Writings,  xi, 
128-156;  Bancroft,  United  States,  vi,  207-276,,  292-367;  Curtis, 
Constitutional  History,  i,  374-488;  ii,  3-487;  Federalist;  H.  Von 
Hoist,  Constitutional  Law,  16-24;  Fiske,  The  Critical  Period,  222- 
305;  McMaster,  i,  438-453;  Hunt,  Lije  of  James  Madison,  Chap. 
XIII,  XIV;  Gay,  James  Madison,  Chap.  VII,  VIII;  Roosevelt, 
Morris,  133-165;  Stille,  Life  and  Times  of  John  Dickinson,  Chap. 
VII;  Lodge,  Hamilton,  57-65;  Schouler,  United  States,  i,  39-51; 
Hart,  Contemporaries,  iii,  Chap.  X;  Old  South  Leaflets,  70. 

The  Constitutional  Convention  of  1787. — Bancroft,  United 
States,  vi;  Curtis,  Constitutional  History,  i,  257-697;  Hart,  Forma- 
tion of  the  Union,  Chap.  VI ;  Walker,  Making  of  the  Nation,  Chap.  II ; 
Hildreth,  United  States,  iii,  Chap.  XLVII,  XL VIII;  Landon, 
Constitutional  History,  76-124;  American  Academy  of  PoUtical 
Science,  Annals,  ix,  380;  Jameson,  Essays  in  Constitutional  History; 
Fisher,  Evolution  of  the  Constitution,  Chap.  VI ;  Story,  Commentaries, 
§§272-281;  Hart,  Contemporaries,  iii,  §§54-82;  Hill,  Liberty  Docu- 
ments, Chap.  XVII ;  Elliot,  Debates;  Meigs,  Growth  of  the  Constitu- 
tion; Stevens,  Sources  of  the  Constitution. 

Different  Opinions  Respecting  the  Confederation  and 
the  Proposed  Qovernment. — Hosmer,  ^(/a?ns,  381-392;  Roose- 
velt, Morris,  128-132;  McMaster,  United  States,  i,  356-389;  Lodge, 
Hamilton,  50-53;  Washington,  Writings,  x,  345,  346;  xi,  1-3,  12, 
80-82;  H.  Von  Hoist,  Constitutional  Law,  13,  14;  Madison,  Letters, 
i,  169-173,  195-198,  201,  202,  205-208,  229,  230. 

Opposition  to  the  Proposed  Constitution,  and  the 
Struggle  to  Secure  its  Adoption. — ElUot,  Debates,  i,  318-338; 
Bancroft,  Uyiited  States,  vi,  371-438,  452-462;  Curtis,  Constitutional 
History,  i,  491-604 ;  Fiske,  The  Critical  Period,  Chap.  VII ;  McMaster, 
United  States,  i,  454-501 ;  Hunt,  Life  of  James  Madison,  Chap.  XV- 
XVII;  Gay,  James  Madison,  Chap.  IX;  Tyler,  Henry,  Chap.  XVIII; 


UNDER  THE  ARTICLES  OF  CONFEDERATION         57 

Hosmer,  Adams,  392-401 ;  Lodge,  Hamilton,  G5-80;  Sohouler,  United 
States,  i,  GO-78;  Hart,  Contemporaries,  iii.  Chap.  XI ;  Johnston,  Amer- 
ican Orations,  i,  24-43;  Ford,  ed.  Pamphlets,  1-23,  91-115,  272-275, 
277-322;  Washington,  Writings,  xi,  183-186;  H.  von  Hoist,  Con- 
stitutional Law,  28. 

General  View  of  the  Formation  of  Constitutions. — 
Jameson,  Constitutional  Conventions;  Morey,  Genesis  of  a  Written 
Constitution,  Am.  Acad.  Pol.  Sc,  Annals,  i,  529-557;  American 
Historical  Review,  v,  4G7-490;  Story,  Commentaries,  §§272-280, 
1826-1831;  Hinsdale,  American  Government,  Chap.  VII-X;  Bryce, 
American  Commonwealth,  i.  Chap.  XXXI,  XXXII. 


CHAPTER  IV 

THE    FEDERAL    LEGISLATURE 

28.  Congress. — Congress  is  composed  of  two  houses,  the 
Senate  and  the  House  of  Representatives.  This  is  in  ac- 
cordance with  the  provision  of  the  first  section  of  Article  1 
of  the  Constitution,  which  afhrms  that  "all  legislative 
powers  herein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  a  House 
of  Representatives."  The  President  cooperates  with  the 
two  houses  of  Congress  in  making  laws.  He  is  required  to 
express  his  approval  or  disapproval  of  "every  order,  resolu- 
tion, or  vote  to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary,"  except  votes 
on  the  question  of  adjournment.  An  additional  exception 
is  that  resolutions  proposing  amendments  of  the  Constitu- 
tion, passed  by  both  houses  of  Congress,  do  not  require  the 
assent  of  the  President.  Composed  of  two  houses,  the 
Congress  has  the  form  generally  assumed  by  the  legislatures 
of  modern  States. 

The  bicameral  organization  of  the  Legislature  is  thought 
to  be  attended  by  certain  advantages:  (1)  It  prevents 
hasty,  rash,  and  dangerous  legislation  by  extending  the 
period  of  deliberation,  and  by  causing  bills  to  be  considered 
from  the  different  points  of  view  of  two  houses  differently 
constituted.  (2)  It  tends  to  check  attempts  to  use  the 
authority  of  the  Legislature  for  personal  or  private  ends. 
(3)  It  gives  opportunity  for  a  new  and  independent  review 
58 


THE  FEDERAL  LEGISLATURE  59 

of  all  projected  measures.  (4)  It  allows  a  bill  tliat  has  been 
passed  in  the  heat  of  passion  in  one  house,  to  be  submitted 
to  the  cool  judgment  of  another  body.  Washington  is 
said  to  have  replied  to  Jefferson's  attack  on  the  system  of 
two  houses  by  saying  to  Jefferson,  as  they  sat  at  table, 
"You  yourself  have  proved  the  excellence  of  two  houses 
this  very  moment."  "I?"  said  Jefferson;  "how  is  that, 
General?"  "You  have,"  replied  Washington,  "  turned  your 
hot  tea  from  the  cup  into  the  saucer,  to  get  it  cool.  It  is 
the  same  thing  we  desire  of  the  two  houses." 

The  two  houses  of  Congress  are  representative  bodies. 
This  means  that  the  members  are  chosen  under  a  system  of 
representation.  Under  this  system  the  following  conditions 
are  observed:  (1)  The  power  of  the  voters  is  transferred 
to  the  representative;  (2)  the  power  is  transferred  for  a 
definite  period;  (3)  the  electors  or  voters  must  not  only 
give  over  the  power,  but  they  must  also  select  the  person 
to  be  the  representative. 

The  representative  is  not  required  to  obey  instructions 
given  him  by  his  constituents  or  to  pledge  himself  to  vote 
in  accordance  with  their  demands.  The  plan  to  instruct 
or  pledge  representatives,  if  carried  out,  would  remove 
the  decision  on  questions  of  legislation  from  the  representa- 
tive body  to  the  voters;  and  this  would  deprive  the  legis- 
lative assembly  of  its  quality  as  a  deliberative"  body  and 
make  it  simply  a  means  for  registering  decisions  determined 
by  the  great  body  of  the  people  having  the  right  to  vote. 

If  one  were  to  in(|viirc  into  the  origin  of  the  bicameral 
system  which  is  illustrated  in  Congress  and  in  the  State 
legislatures,  he  would  be  led  back  to  the  early  history  of 
our  race  for  the  type — to  the  time  when  there  was  a  king 
or  chief  with  limited  power,  a  small  council  of  nobles  or  of 
old  men,  and  a  general  assembly  of  the  whole  people.  This 
type  has  perpetuated  itself  in  the  later  history  of  the  race. 
The  council  survives  in  the  modern  House  of  Lords,  or  house 


60        THE   GOVERNMENT  OF  THE   UNITED   STATES 

of  nobles,  or  Senate;  and  the  assembly  survives  in  the  lower 
house,  under  whatever  name  it  may  appear.  In  the  course 
of  history  there  have  been  temporary  variations  from  this 
type.  In  Sweden,  for  a  long  time,  there  M^ere  four  houses 
that  made  up  the  national  legislature.  These  four  legislative 
bodies  represented  four  classes:  the  nobles,  the  clergy,  the 
burgesses  or  the  inhabitants  of  cities,  and  the  peasants  or 
persons  living  in  the  country.  In  England  all  of  these 
classes  existed;  but  the  nobles  and  the  clergy  were  repre- 
sented in  the  House  of  Lords,  and  the  other  two  classes 
were  represented  in  the  House  of  Commons.  Under  Crom- 
well, England  had  for  a  short  time  a  single  house;  France 
began  her  several  republican  governments  in  each  case  with 
only  one  national  legislative  body.  Congress  consisted  of 
only  one  body  under  the  Articles  of  Confederation.  But 
everywhere  there  has  been  a  tendency  to  the  bicameral 
system,  realizing  the  original  type.  In  the  persistence  of 
the  political  instinct  of  our  race  is  the  fundamental  ground 
for  the  similarities  discovered  among  modern  governments, 
and  for  the  appearance  of  the  bicameral  legislature  in 
practically  all  of  them. 

Topics. — Form  of  congressional  organization. — Legislative 
power  of  the  President. — Advantages  of  bicameral  system. — 
Washington's  illustration.— Character  of  a  representative. — In- 
structing representatives. — The  political  instinct. 

References. — Dawes,  How  We  Are  Governed,  73;  Ford,  Ameri- 
can Citizen's  Mayuial,  Part  I,  10;  Hinsdale,  American  Government, 
144-147;  Lalor,  Cyclopaedia,  i,  587;  Freeman,  General  Sketch  of 
History,  6;  Crane  and  Moses,  Politics,  68-81. 

29.  The  House  of  Representatives. — The  House  of  Rep- 
resentatives is  "  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States."  The  members 
of  this  body  are  said  to  represent  the  people;  yet  in  their 
election  the  individuality  of  the  States  is  recognized,  since 


THE  FEDERAL  LEGISLATURE  61 

every  congressional  district  is  a  subdivision  of  a  State.  The 
electors  in  each  State  are  required  to  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch 
of  the  State  legislature.  Members  from  different  States 
are,  therefore,  elected  under  different  rules  of  suffrage.  In 
Rhode  Island  a  property  qualification  is  required.  In 
Massachusetts,  Connecticut,  and  California  it  is  required 
that  the  elector  shall  be  able  to  read  the  Constitution  or  other" 
laws.  The  only  limitation  on  the  power  of  the  State  to 
determine  who  shall  be  an  elector  is  that  contained  in  the 
fifteenth  amendment  of  the  Constitution,  which  provides 
that  "  the  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States,  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of 
servitude." 

Topics. — Time  of  election. — Representation  of  the  people. — 
Qualifications  of  representatives. — Qualifications  of  electors. — 
Fifteenth  amendment. 

References. — Dawes,  How  We  Are  Governed,  74;  Fiske,  Civil 
Government,  220-232;  Hinsdale,  American  Government,  147,  148, 
151 ;  Lalor,  Cyclopaedia,  ii,  474;  Macy,  Our  Government,  183. 

30.  The  Number  and  Apportionment  of  Representatives. 
— The  number  of  members  of  the  House  of  Representatives 
in  the  United  States  at  its  first  meeting  was  fixed  by  the 
Constitution.  It  was  provided  that  this  number  should 
not  exceed  one  for  every  30,000  inhabitants;  and  that, 
awaiting  the  first  enumeration,  which  was  required  to  be 
made  "within  three  years  after  the  first  meeting  of  the 
Congress,"  the  States  might  elect  sixty-five  members,  dis- 
tributed as  follows:  New  Hampshire,  three;  ]\Iassachusetts, 
eight;  Rhode  Island,  one;  Connecticut,  five;  New  York, 
six;  New  Jersey,  four;  Pennsylvania,  eight;  Delaware,  one; 
Maryland,  six;  Virginia,  ten;  North  Carolina,  five;  South 
Carolina,  five;  and  Georgia,  three.     With  each  successive 


62       THE  GOVERNMENT  OF  THE  UNITED  STATES 

census  a  new  ratio  has  been  adopted.  The  following  gives 
the  period,  the  census  on  which  the  ratio  is  based,  the 
ratio,  and  the  number  of  members: 


PERIOD. 

CENSUS. 

RATIO. 

NO.  OF  MEMBERS. 

1789-1793 

Determined  by  the  Constitution. 

65 

1793-1803 

1790 

33,000 

105 

1803-1813 

1800 

33,000 

141 

1813-1823 

1810 

35,000 

181 

1823-1833 

1820 

40,000 

212 

1833-1843 

1830 

47,500 

240 

1843-1853 

1840 

70,680 

223 

1853-1863 

1850 

93,503 

234 

1863-1873 

1860 

127,941 

241 

1873-1883 

1870 

130,533 

292 

1883-1893 

1880 

154,325 

332 

1893-1903 

1890 

173,901 

356 

1903- 

1900 

194,182 

386 

It  is  to  be  observed  here  that  not  only  has  the  ratio 
increased  from  decade  to  decade,  but  the  number  of  mem- 
bers also  has  greatly  increased.  The  first  five  apportion- 
ments were  made  according  to  the  population  of  the 
States,  but  no  account  was  taken  of  the  fractional  re- 
mainders. Under  the  rule  adopted  in  1843,  each  State  had 
as  many  representatives  as  the  basis  of  the  ratio,  70,680, 
was  contained  times  in  the  population  of  the  State,  and  one 
representative  for  the  remainder  over  one-half  of  this 
number.  Each  State,  whatever  its  population,  should  have 
at  least  one  representative.  But  for  this  provision  Dela- 
ware, Nebraska,  Nevada,  and  Oregon  would  have  had  no 
representation  in  the  House  in  1873,  since  the  population 
of  each  of  those  States  was  below  the  number  fixed  as  the 
basis  of  the  ratio.  Any  State  coming  into  the  Union  after 
the  number  and  apportionment  of  representatives  has  been 
determined  shall  be  represented  in  accordance  with  the 
fixed  ratio,  but  the  representatives  shall  be  in  addition  to 
the  specified  number.     Numerous  later  changes  have  been 


THE  FEDERAL  LEGISLATURE  63 

made  in  the  method  of  apportioning  tlic  representatives, 
but  the  fraction  has  continued  to  be  considered.  With 
the  growth  of  the  nation  the  representative  has  come  to 
stand  for  an  increasing  body  of  persons. 

While  negro  slavery  lasted  in  the  South,  the  slaves  were 
counted  for  three-fifths  of  their  actual  number  in  deter- 
mining the  population  of  the  State  for  purposes  of  appor- 
tioning representatives.  If,  for  example,  a  State  had  a 
white  population  of  175,000  and  a  slave  population  of 
100,000,  the  State  would  be  awarded  a  representation  on 
the  basis  of  a  population  of  175,000  plus  three-fifths  of 
100,000,  or  60,000;  or  in  all,  a  population  of  235,000.  With 
a  ratio  of  one  representative  for  each  33,000  of  the  in- 
habitants, such  a  State  would  send  seven  representatives  to 
Congress.  The  constitutional  provision  in  this  matter  was 
that  "  Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  number 
of  free  persons,  including  those  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  -not  taxed,  three-fifths  of 
all  other  persons."  As  the  slaves  had  no  vote,  this  provision 
gave  the  white  people  in  the  South  a  larger  congressional 
representation  than  had  the  white  people  in  the  North. 
"The  arrangement  adopted  by  the  Constitution  was  a 
matter  of  com.promise  and  concession,  confessedly  unecpud 
in  its  operation,  but  a  necessary  sacrifice  to  that  spirit  of 
conciliation  which  was  indispensable  to  the  union  of  States 
having  great  diversity  of  interests  and  physical  condition 
and  political  institutions." 

Topics. — Original  number  of  representatives. — Apportionment 
of  these. — Increasing  ratio. — Increasing  number  of  members. — 
Fractional  remainders  in  the  several  States. — Negro  slavery  in  the 
system  of  apportionment. — The  constitutional  provision  establish- 
ing this  system. 


64        THE  GOVERNMENT   OF  THE   UNITED   STATES 

References. — Dawes,  How  We  Are  Governed,  75-7S;  Ford, 
American  Citizen's  Manual,  14,  15;  Hart,  Actual  Government,  221- 
225;  Macy,  Our  Government,  180-182;  Story,  On  the  Constitution, 
§§  636-644;  Bancroft,  United  States,  vi,  264-269. 

31.  Qualifications  of  Representatives. — A  representative 
in  the  United  States  must  liave  the  following  qualifications: 

1.  He  must  be  twenty-five  years  old.  For  the  lower,  or 
elective,  house  of  the  English  Parliament  it  is  required 
simply  that  the  member  shall  not  be  a  minor. 

2.  The  representative  must  have  been  for  seven  years 
a  citizen  of  the  United  States.  He  may,  therefore,  be  a 
naturalized  foreigner.  In  England,  however,  a  foreigner, 
though  naturalized,  cannot  be  a  member  of  either  house  of 
Parliament. 

3.  For  the  representative  there  is  no  property  qualifica- 
tion and  no  religious  test. 

4.  The  representative,  when  elected,  must  be  an  in- 
habitant of  the  State  in  which  he  is  chosen.  Also  it  is 
expected  that  he  will  live  in  the  district  in  which  he  is 
chosen.  But  this,  like  other  unwritten  laws,  is  not  always 
followed.  The  reason  for  this  provision  is  the  thought  that 
a  representative  who  resides  in  the  district  will  better  under- 
stand the  peculiar  wants  of  his  constituents  than  one  living 
in  some  other  part  of  the  State.  Under  this  system  too 
much  stress  has  sometimes  been  laid  on  the  character  of 
the  representative  as  a  local  agent.  "Representatives," 
says  Judge  Cooley,  "are  chosen  in  States  and  districts;  but 
when  chosen  they  are  legislators  for  the  whole  country,  and 
are  bound  in  all  they  do  to  regard  the  interest  of  the  whole. 
Their  own  immediate  constituents  have  no  more  right  than 
the  rest  of  the  nation  to  address  them  through  the  press,  to 
appeal  to  them  by  petition,  or  to  have  their  local  interests 
considered  by  them  in  legislation.  They  bring  with  them 
their  knowledge  of  local  wants,  sentiments,  and  opinions. 


THE   FEDERAL  LEGISLATURE  65 

and  may  enlighten  Congress  respecting  these,  and  thereby 
aid  all  the  members  to  act  wisely  in  matters  which  affect 
the  whole  country;  but  the  moral  obligation  to  consider 
the  interest  of  one  part  of  the  country  as  much  as  that  of 
another,  and  to  legislate  with  a  view  to  the  best  interests 
of  all,  is  obligatory  upon  every  member,  and  no  one  can 
be  relieved  from  this  obligation  by  instructions  from  any 
source.  Moreover,  the  special  fitness  to  legislate  for  all, 
which  is  required  by  the  association,  mutual  information, 
and  comparison  of  views  of  a  legislative  body,  cannot  be 
had  by  the  constituency;  and  the  advantages  would  be  lost 
to  legislation  if  the  right  of  instruction  were  recognized."^ 
Actually,  however,  representatives  and  senators  and 
members  of  State  legislatures  are  elected  with  the  very 
definite  understanding  that  they  are  to  work  for  the  interests 
of  their  several  districts  or  for  the  interests  of  their  States; 
and  their  success  is  generally  likely  to  be  estimated  by  their 
constituents  with  reference  to  what  they  accomplish  in  this 
narrower  sphere  of  their  proper  activity. 

Topics. — Qualifications  of  representatives. — The  question  of 
residence. — Functions  and  obligations  of  representatives. 

References. — Dawes,  How  We  Are  Governed,  80-82;  Hinsdale, 
American  Government,  148;  Fiske,  Civil  Government,  221;  Cooley, 
Constitutional  Law,  41,  42. 

32.  The  Method  and  Period  of  Election. — It  is  required 
by  law  that  representatives  shall  be  elected  by  districts 
of  contiguous  territory  equal  in  number  to  the  number 
of  representatives.  This  requirement  was  established  by 
an  act  of  Congress,  passed  June  25,  1842.^  This  was  the 
first  practical  step  on  the  part  of  Congress  to  control  the 
election  of  its  members.  Further  legislation  to  the  same 
end  was  had  in  1871,  when  by  congressional  act  it  was 

^  Cooley,  Constitutional  Law,  41,  42. 
2  See  S  33. 


66    THE  GOVERNMENT  OF  THE  UNITED  STATES 

provided  that  all  votes  for  representatives  in  Congress 
should  be  by  written  or  printed  ballots.  The  next  year, 
in  1872,  the  time  for  holding  the  elections  was  fixed  for  the 
Tuesday  after  the  first  Monday  of  November;  and  this  pro- 
vision was  made  to  apply  throughout  the  Union  and  to  go 
into  effect  in  1876.  But  before  this  date — namely,  in  1875 
— States  that  had  through  their  constitutions  established 
a  different  date  for  voting  for  representatives  in  Congress 
were  exempted  from  the  operation  of  this  law;  and  in  1899 
the  use  of  the  voting  machine  was  made  lawful,  as  well  as 
the  use  of  written  or  printed  ballots.  This  action  was  taken 
under  the  constitutional  provision  which  prescribed  that 
"  the  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may  at 
any  time  by  law  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  senators.  "^  The  exception  concerning 
the  places  of  choosing  senators  was  inserted  because  it  was 
not  thought  desirable  that  the  Congress  should  have  the 
right  to  determine  where  the  State  legislatures  should  meet. 
The  representatives  are  elected  for  two  years.  Although 
elected  in  November,  they  do  not  meet  until  December 
of  the  following  year,  unless  summoned  to  an  extra  session. 
This  arrangement  gives  the  newly  elected  representative 
opportunity  and  incentive  to  become  familiar  with  the 
details  of  procedure  in  the  House  and  with  the  methods  of 
acquiring  in  the  executive  departments  and  elsewhere,  the 
special  information  which  he  will  need  from  time  to  time  in 
his  legislative  work.  On  the  other  hand,  if  he  is  elected  as 
the  champion  of  an  idea  or  policy,  in  which  his  constituents 
are  especially  interested,  he  will  have  no  opportunity  for  a 
year  after  his  election  to  advocate  that  policy;  and  in  the 
meantime  the  people  thus  interested  are  powerless  to  in- 

See  §  37. 


THE  FEDERAL   LEGISLATURE  67 

tervene  by  legislation  in  matters  that  vitally  concern  them. 
But  it  may,  perhaps,  still  be  urged  that  any  cause  or  policy 
that  is  not  of  sufficient  importance  to  keep  itself  alive  for 
more  than  a  year  is  likely  to  partake  of  the  nature  of  a 
popular  whim,  and  ought  not  to  be  represented  in  permanent 
legislation.  The  government  is  not  formed  to  give  im- 
mediate expression  to  gusts  of  popular  passion,  but  to 
embody  in  laws,  and  carry  out  executively,  the  matui-e  and 
abiding  wishes  of  the  nation. 

Only  eleven  extra  sessions  were  held  in  the  first  one 
hundred  and  fifteen  j^cars  under  the  Constitution.  As  the 
representative's  term  is  only  half  as  long  as  that  for  which 
the  President  is  elected,  the  people  have  an  opportunity 
to  indicate  their  views  on  important  phases  of  the  Presi- 
dent's policy  in  the  middle  of  his  administration.  "When 
vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election 
to  fill  such  vacancies."  1  The  governor  of  the  State  has 
no  power  to  fill  such  vacancy  by  appointment.  Formerly, 
in  some  of  the  States,  a  majority  of  all  the  votes  cast  was 
necessary  for  an  election;  but  since  1894  only  a  plurality 
has  been  required  in  all  States.  The  short  term  of  two  years 
for  which  representatives  are  elected,  and  the  failure  of 
many  of  them  to  secure  reelection  more  than  once  or  twice, 
renders  the  House  less  effective  than  it  would  be  if  the 
members  generally  served  for  longer  periods;  for  by  longer 
service  they  would  become  familiar  with  the  necessary 
methods  of  legislation,  and  thus  more  useful  both  to  their 
constituents  and  to  the  nation  as  a  whole. 

■  Topics. — Congressional  districts. — Steps  toward  control  of 
elections  by  Congress. — Constitutional  authority  for  this  action. — 
Period  between  election  and  meeting  of  representatives. — Advan- 
tages and  disadvantages  of  short  term. — Vacancies  in  the  House. 

*  Constitution,  Art.  I,  §  2. 


68        THE   GOVERNMENT  OF  THE   UNITED   STATES 

References. — Bryce,  American  Commonwealth,  i,  121-137; 
Dawes,  How  We  Are  Governed,  78 ;  Ford,  American  Citizen's  Manual, 
Part  I,  15-17;  Hinsdale,  American  Government,  155-159,  164-166. 

33.  Gerrymander. — Before  1842  the  representatives  from 
any  State  might  be  elected  by  a  general  ticket  of  the  whole 
State,  the  voters  in  all  parts  of  the  State  voting  for  the 
whole  list  of  persons  to  be  elected.  Since  that  date  the  sev- 
eral representatives  have  been  elected  from  congressional 
districts.  There  is  a  conspicuous  exception  to  this  rule. 
After  a  new  census  it  becomes  necessary  to  make  a  new 
apportionment  of  the  representation.  If  a  State  under  a 
new  apportionment  act  is  allotted  an  increase  in  the  number 
of  its  representatives,  and  the  congressional  election  occurs 
before  the  new  districts  have  been  formed,  the  additional 
member  or  members  are  chosen  by  voters  from  all  parts 
of  the  State.  They  are  elected  on  what  is  known  as  a 
general  ticket.  They  are  called  "congressmen  at  large." 
It  is  sometimes  said  that  election  by  general  ticket  is  likely 
to  secure  a  better  class  of  officers  than  election  in  small 
districts.  The  ground  of  this  opinion  is  found  in  the  fact 
that  in  order  to  attract  the  approving  attention  of  a  whole 
State  or  of  a  very  large  district,  stronger  qualities  are  re- 
quired than  would  be  needed  to  bring  one  prominently 
before  the  inhabitants  of  a  small  district.  On  the  other 
hand,  in  a  very  large  district  the  individual  voter  can  know 
only  imperfectly  the  candidate  for  whom  or  against  whom 
he  is  expected  to  vote.  He  is  obliged  to  regard  the  nomi- 
nation by  his  party  convention  as  a  guarantee  that  the 
candidate  is  worthy  of  his  support.  This  arrangement, 
however,  throws  upon  the  party  committee,  or  party 
managers,  a  greater  power  than  it  was  originally  intended 
any  such  persons  should  exercise. 

When  members  of  the  House  of  Representatives  are 
elected,  each  in  his  individual  district,  the  party  in  power 


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70         THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  a  State,  on  redistricting  the  State,  is  moved  to  lay  out 
the  districts  in  such  a  way  as  to  insure  for  itself  the  election 
of  the  largest  possible  number  of  congressmen.  The  method 
that  has  sometimes  been  employed  to  reach  this  end  is  to 
draw  the  lines  of  district  boundaries  in  such  a  way  as  to 
make  majorities  for  the  party  in  charge  of  redistricting  in 
as  many  districts  as  possible,  but  to  make  these  majorities  as 
small  as  may  be  safely  done,  and  to  make  majorities  for  the 
opposing  party  in  as  few  districts  as  possible,  but  to  make 
them  as  large  as  possible.  This  arrangement  has  caused 
the  party  in  power  to  waste  the  fewest  votes  possible,  and 
the  opposite  party  the  most  possible;  for  all  votes  given  in 
any  district  over  the  number  necessary  to  make  a  safe 
majority  are  thrown  away.  If  the  region  where  these 
surplus  voters  mainly  reside  can  be  added  to  another  dis- 
trict, where  they  are  needed  to  make  a  majority,  another 
representative  is  gained  for  the  party  interested  in  making 
the  change.  In  attempting  to  accomplish  this  purpose 
districts  have  sometimes  been  made  very  irregular  in  shape, 
as  may  be  seen  by  a  glance  at  the  outlines  of  the  congres- 
sional districts  of  South  Carolina.  The  light,  broken  lines 
represent  the  boundaries  of  counties;  the  heavy,  solid  lines, 
the  boundaries  of  the  congressional  districts. 

The  trick  was  invented  in  Virginia,  and  was  there  ap- 
plied for  the  purpose  of  preventing  the  election  of  James 
Madison  to  the  first  Congress.  It  was  later  introduced  into 
Massachusetts.  Under  Governor  Gerry  it  was  applied  to 
secure  the  largest  possible  number  of  State  senators  for  the 
party  to  which  he  belonged.  A  number  of  towns  that  were 
brought  together  into  one  district  made  a  strange  figure, 
which,  through  a  combination  of  part  of  the  word  sala- 
mander with  the  name  of  Gerry,  was  designated  "  Gerry- 
mander."  The  terms  gerrymander  and  gerrymandering  have 
remained  in  the  language  of  American  politics;  and,  un- 
fortunately, the  practice  designated  also  has  remained. 


THE  FEDERAL  LEGISLATURE  71 

Topics.— Election  by  general  ticket. — Aim  of  party  in  power  in 
redistricting  the  State. — Methods  sometimes  employed  to  accom- 
plish its  purpose. — Origin  and  name  of  gerrymandering. 

References. — Bryce,  American  Commonwealth,  i,  121,  note; 
Fiske,  Civil  Government,  224;  Hart,  Actual  Government,  222;  Hins- 
dale, American  Government,  166;  Lalor,  Cyclopcedia,  n,  367. 

34.  The  Senate. — The  Congress  under  the  Articles  of 
Confederation  consisted  of  only  one  house.  In  this  body 
a  certain  equality  among  the  States  was  maintained,  since 
each  State,  whatever  the  number  of  its  delegates  to  the 
Congress,  had  one  vote.  Now  each  State  has  two  votes 
in  the  Senate.  It  may  therefore  be  divided  against  itself, 
giving  its  two  votes  on  opposite  sides  of  a  given  question. 
This  equal  representation  of  the  States  is  fixed  by  the 
Constitution,  which  declares  that  "no  State,  without  its 
consent,  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate." 

The  special  purposes  for  which  the  Senate  exists  have 
been  set  forth  as  follows: 

"To  conciliate  the  spirit  of  independence  in  the  several 
States,  by  giving  each  State,  however  small,  equal  repre- 
sentation with  every  other,  however  large,  in  one  branch  of 
the  national  Government. 

"To  create  a  council  qualified,  by  its  moderate  size  and 
the  experience  of  its  members,  to  advise  and  check  the 
President  in  the  exercise  of  his  powers  of  appointing  to 
office  and  concluding  treaties. 

"To  restrain  the  impetuosity  and  fickleness  of  the 
popular  house,  and  so  guard  against  the  effects  of  gusts  of 
passion  or  sudden  changes  of  opinion  in  the  people. 

"To  provide  a  body  of  men  whose  greater  experience, 
longer  term  of  membership,  and  comparative  independence 
of  popular  election  would  make  them  an  element  of  stability 
in  the  government  of  the  nation,  enabling  it  to  maintain  its 


72        THE   GOVERNMENT  OF  THE   UNITED   STATES 

character  in  the  eyes  of  foreign  states,  and  to  preserve  a 
continuity  of  poHcy  at  home  and  abroad. 

"To  establish  a  court  proper  for  the  trial  of  impeach- 
ments, a  remedy  deemed  necessary  to  prevent  abuse  of 
power  by  the  executive." 

Topics. — Differences  between  the  Congress  under  the  Articles  of 
Confederation  and  under  the  Constitution. — Purposes  of  the  Senate. 

References.— Bryce,  American  Commonwealth,  i,  108;  Wilson, 
Congressional  Government,  Chap.  IV;  Willoughby,  Rights  and  Duties 
of  American  Citizenship,  166,  167. 

35.  The  Number,  Classification,  and  Terms  of  Senators. 

— The  senatorial  term  is  six  years.  In  order  that  the 
Senate  might  be  a  permanent  body,  it  was  provided  that 
the  first  senators  elected  should  be  divided  as  equally  as 
might  be  into  three  classes.  In  the  words  of  the  Constitu- 
tion, "the  seats  of  the  senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year,  of  the  second 
class  at  the  expiration  of  the  fourth  year,  and  of  the  third  class 
at  the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year;  and  if  vacancies  happen, 
by  resignation  or  otherwise,  during  the  recess  of  the  legis- 
lature of  any  State,  the  executive  thereof  may  make  tem- 
porary appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies."  But  after  the 
legislature  has  had  an  opportunity  to  elect  a  senator  and 
failed  to  do  it,  the  governor  cannot  fill  the  vacancy  by 
appointment.  If  an  appointment  were  made  under  these 
circumstances,  the  Senate  would  refuse  to  admit  the  per- 
son appointed.  In  making  the  classes  originally,  no  two 
senators  from  one  State  were  put  into  the  same  class;  and 
the  term  for  which  each  class  should  serve  was  determined 
by  lot.  Senators  from  new  States  are  assigned  to  one  or 
another  of  these  classes;  consequently,  the  first  senators 
from  new  States  serve  unequal  periods.     One  may  fall  into 


A 


THE  FEDERAL   LEGISLATURE  73 

the  class  of  senators  just  elected,  and  have  nearl}-  or  quite 
the  full  term;  the  other  may  be  put  into  the  class  with  those 
whose  terms  are  about  to  expire,  and  thus  have  only  a  very 
brief  period  of  service. 

Topics. — Provision  for  making  the  Senate  a  permanent  body. 
— Fillino:  vacancies. — Senators  from  new  States. 

References. — Bryce,  American  Commonwealth,  i,  92-120; 
Dawes,  How  We  Are  Governed,  82-84;  Fiske,  CivU  Government,  223; 
Hart,  Actual  Government,  217. 

36.  Qualifications  of  Senators. — To  be  a  senator  one 
must  have  the  following  qualifications:  (1)  He  must  be 
thirty  years  old;  (2)  he  must  have  been  a  citizen  nine  years; 
(3)  he  must  be  an  inhabitant  of  the  State  from  which  he  is 
chosen.  It  was  designed  originally  that  the  Senate  should 
be  composed  of  men  of  superior  ability  and  large  experience 
in  legislative  and  administrative  affairs.  In  more  recent 
years  many  very  rich  men,  without  knowledge  or  instructive 
political  experience  have  asked  to  be  elected  senators,  and 
their  requests  in  some  cases  have  been  granted. ^ 

Topics. — Qualifications  of  senators. — Original  design  respecting 
senators. — Is  wealth  also  a  qualification? 

References. — Dawes,  How  We  Are  Governed,  88;  Fiske,  Civil 
Government,  223;  Hart,  Actual  Government,  220;  Hinsdale,  Ameri- 
can Government,  162. 

37.  Method  of  Election. — Respecting  the  election  of 
senators,  the  Constitution  provides  simply  that  they  shall 

'  "  The  election  of  the  senators  by  the  State  legislatures  has  given 
rich  nonentities  exceptional  facilities  for  obtaining  seats  in  the  Senate, 
if  not  by  direct  corruption,  at  all  events  through  the  party  organization 
which  they  get  hold  of  by  their  liberal  contributions  to  the  party.  The 
electors  of  a  whole  State  cannot  be  bought,  of  course;  but  if  the  organ- 
ization adopts  these  millionaires  as  regular  candidates  for  the  popular 
election,  will  not  the  final  result  be  the  same?" — Ostrogorski,  Democracy 
and  the  Organization  of  Political  Parties,  ii,  537. 
6 


74        THE   GOVERNMENT   OF   THE  UNITED   STATES 

be  chosen  by  the  legislature  of   the  State.     The  manner 
of  electing  was   for   some   time   determined  by  the  State 
itself.     Under  this  freedom  about  half  of  the  States  elected 
senators  by  a  concurrent  vote   of    both  houses,   and  the 
other  States  required  the  senators  to  be  voted   for  in  an 
assembly  composed  of  the  two  houses.     On  July  25,  1S66, 
Congress,  by  a  statute,  prescribed   a  method   to    be    ob- 
served in  all  the  States.      Under  this  law  the   "election 
shall  be  conducted  in  the  following  manner:    Each  house 
shall  openly,  by  a  viva  voce  vote  of  each  member  present, 
name  one  person  for  senator  in  Congress  from  such  State, 
and  the  name  of  the  person  so  voted  for,  who  received  a 
majority  of  the  whole  number  of  votes  cast  in  each  house, 
shall  be  entered  on  the  journal  of  that  house  by  the  clerk 
or  secretary  thereof;    and  if  either  house  fails  to  give  such 
majority  to  any  person  on  that  day,  the  fact  shall  be  entered 
on  the  journal.     At  twelve  o'clock,  meridian,  on  the  day 
following  that  on  which  proceedings  are  required  to  take 
place  as  aforesaid,  the  members  of  the  two  houses  shall 
convene  in  joint  assembly,  and  the  journal  of  each  house 
shall  then  be  read;    and  if  the  same  person  has  received  a 
majority  of  all  the  votes  in  each  house,  he  shall  be  declared 
duly   elected   senator.     But   if   the   same   person   has   not 
received  a  majority  of  the  votes  in  each  house,  or  if  either 
house  has  failed  to  take  proceedings  as  required  by  this 
section,  the  joint  assembly  shall  then  proceed  to  choose, 
by  a  viva  voce  vote  of  each  member  present,  a  person  for 
senator;   and  the  person  who  receives  a  majority  of  all  the 
votes  of  the  joint  assembly,  a  majority  of  all  the  members 
elected  to  both  houses  being  present  and  voting,  shall  be 
declared  duly  elected.     If  no  person  receives  such  a  majority 
on  the  first  day,  the  joint  assembly  shall  meet  at  twelve 
o'clock,  meridian,  of  each  succeeding  day  during  the  session 
of  the  legislature,  and   shall   take  at  least  one  vote,  until 
a  senator  is  elected  "     This  process  by  which  an  elective 


THE   FEDERAL  LEGISLATURE  75 

body,  like  a  legislature,  chooses  an  officer,  as  in  the  case  of 
electing   a   senator,   is   called   an    indirect   election.     It   is 
distinguished  from  a  direct  election,  for  in  a  direct  election 
the  voters  vote  immediately  for  the  person  they  wish  to 
choose.     This  method  of  choosing  the  senators  has  called 
forth    favorable    opinions    from    foreign   critics;    but   the 
voters  of  the  United  States  have  not  been  constantly  of 
one    mind    concerning    its    merit.      There   were   provided, 
through  the  Constitution,  only  two  important  occasions  for 
resorting  to  indirect  election:    one,  in  the  election  of  the 
President;    another,  in  the  election  of  senators.     In  this 
respect  the  United  States  stands  in  strong  contrast  with 
some   of   the   Spanish-American   republics,   where   indirect 
election  is  more  extensively  used.     The  original  method  of 
electing  the  President  has  been  dropped,  and  several  at- 
tempts have  been  made  to  cause  the  senators  to  be  chosen 
by  the  direct  vote  of  the  people.     These  attempts  have 
taken  the  form  of  proposals  to  amend  the  Constitution  of 
the  United  States.     The  proposal  is  "  that  so  much  of  Sec- 
tion 3,  Article  1,  of  the  Constitution  of  the  United  States 
as  provides  that  the  senators  of  the  United  States  shall  be 
chosen  by  the  legislatures  thereof,  shall  be  amended  so  that 
the  same  shall  read  as  follows:  'The  Senate  of  the  United 
States  shall  be  composed  of  two  senators  from  each  State, 
to  be  chosen  by  the  vote  of  the  qualified  electors  in  said 
States  respectively,  and  at  such  time  as  shall  l)e  determined 
by  act  of  Congress.'"     Propositions    like    this  have  been 
much  discussed  and  \igorously  urged  in  tlie  last  few  years. 
The  plan  to  have  United  States  senators  elected  directly 
by  the  whole  body  of  voters  is  supported   especially   by 
two  classes  of  persons:  (1)  Those  who  believe  that  progress 
toward  good  government  consists  in  bringing  all  govern- 
mental affairs  as  fully  into  the  hands  of  the  people  as  pos- 
sible;   (2)  those  who  believe  that  the  election  of  senators 
by  the  legislature  offers  facilities  for  corruption  that  would 


76   THE  GOVERNMENT  OF  THE  UNITED  STATES 

not  be  presented  by  a  direct  election,  and  that  to  make  the 
change  proposed  would  render  this  phase  of  political  life 
purer.  A  step  away  from  free  indirect  election  is  some- 
times taken  by  having  each  State  convention  announce  the 
candidate  of  the  party.  This  was  done  by  the  Republican 
Convention  of  Illinois,  in  1858,  when  it  was  announced  that 
if  the  next  legislature  should  have  a  majority  of  Republicans, 
Abraham  Lincoln  would  be  elected  senator.  A  similar 
announcement  was  made  by  the  Democrats  in  favor  of 
Stephen  A.  Douglas. 

Topics. — Election  of  senators. — Method  prescribed  by  Con- 
gress, July  25,  1866. — Direct  and  indirect  elections. — Indirect  elec- 
tion in  the  United  States. 

References. — Hinsdale,  American  Government,  160;  Lalor,  Cy- 
clopccdia,  iii,  702;  Wilson,  Congressional  Government,  193-241;  Re- 
vised Statutes  of  the  United  States,  §  15. 

38.  Meetings  of  Congress. — The  time  fpr  the  meeting 
of  Congress  is  fixed  by  the  Constitution  in  the  provision 
that  "  the  Congress  shall  assemble  at  least  once  in  every 
year;  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day." 
Under  this  provision  each  Congress  holds  two  regular  ses- 
sions. The  two  regular  sessions  may  be  known  as  the  long 
and  the  short  sessions.  The  former  begins  on  the  first  Mon- 
day in  December,  and  continues  into  the  following  sum- 
mer. The  latter,  beginning  on  the  first  Monday  in  December 
of  the  year  in  which  the  first  session  closes,  ends  at  noon 
on  the  fourth  of  March.  Prior  to  1853  this  session  ended  at 
midnight,  March  3;  and  at  the  present  time  all  business 
transacted  between  that  time  and  noon  of  the  following  day 
is  recorded  as  of  the  third  of  March.  Under  an  act  of  Jan- 
uary 22,  1SG7,  requiring  each  new  Congress  to  meet  "at 
twelve  o'clock,  meridian,  on  the  fourth  day  of  March,  the 
day  on  which  the  term  begins  for  which  Congress  is  elected," 


THE  FEDERAL   LEGISLATURE  77 

each  Congress  held  three  sessions.  The  first  session  began 
March  4;  the  second,  on  the  first  Monday  in  December;  and 
the  third,  on  the  first  Monday  in  December  of  the  following 
year.  This  law  was  later  repealed.  The  forty-second  Con- 
gress, which  ended  March  3,  1873,  was  the  last  whose  meet- 
ings were  determined  by  it.  In  this  connection  the  distinc- 
tion between  a  congress  and  a  session  should  be  kept  in 
mind.  A  congress,  as  the  forty-seventh,  is  the  whole  body 
of  representatives  and  senators  taken  for  the  period  of  two 
years  for  which  the  representatives  are  elected.  The  session 
is  the  series  of  meetings  extending  from  the  first  Monday 
in  December  to  tlie  time  of  adjournment  in  the  following 
spring  or  summer.  A  new  Congress  is  elected  every  two 
years.  Its  regular  sessions  begin  on  the  first  Monday  in 
December  of  each  year.  It  may  be  convened  in  extra 
session  by  the  President. 

An  adjournment  of  Congress  is  had  on  motion.  But 
"  neither  house,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses 
shall  be  sitting."  A  motion  to  adjourn  takes  precedence 
of  all  other  motions  and  cannot  be  amended  or  debated. 

Either  the  Senate  or  the  House  of  Representatives  may 
be  convened  separately.  But,  practically,  there  appears  to 
be  no  reason  for  calling  the  House  without  the  Senate.  On 
the  other  hand,  for  considering  treaties  and  for  confirming 
appointments  to  office,  there  may  be  need  of  calling  a  meet- 
ing of  the  Senate  without  the  House. 

Congress  has  met  in  three  cities:  from  1789  to  1791,  in 
New  York;  from  1791  to  1800,  in  Philadelphia;  since  1800, 
in  Washington.  The  building  in  which  the  two  houses  meet 
at  present  is  called  the  Capitol,  the  Senate  occupying  the 
north  wing,  and  the  House  the  south  wing. 

The  houses  of  Congress  determine  at  what  hour  of  the 
day  the  meetings  shall  begin.     They  adjourn  whenever  they 


78   THE  GOVERNMENT  OF  THE  UNITED  STATES 

see  fit.  Ordinarily  they  meet  at  noon,  and  the  meeting 
usually  lasts  four  or  five  hours.  The  houses  also  determine 
on  what  days  meetings  shall  be  held.  Sometimes  meetings 
are  held  in  the  evening,  and  on  rare  occasions  the  meetings 
are  continued  all  night.  The  all-night  meetings  have  not 
been  found  favorable  for  the  transaction  of  important  busi- 
ness. The  ordinary  meetings  are  public ;  but  an  "executive 
session/'  that  is  to  say,  a  secret  session,  is  held  whenever 
the  majority  of  the  house  by  vote  expresses  a  desire  for  such 
a  meeting.  Ordinarily,  when  questions  of  general  interest 
are  before  Congress,  the  business  of  the  houses  is  carried  on 
in  the  presence  of  a  large  number  of  visitors. 

Topics. — Time  for  the  meeting  of  Congress. — Law  of  1867. — 
A  congress  and  a  session. — Method  of  convening  Congress. — Ad- 
journment.— Reason  for  convening  one  house  without  the  other. — 
Where  Congress  has  met. — "Executive  session." 

References. — Bryce,  American  Commonwealth,  Chap.  XIX; 
Dawes,  How  We  Are  Governed,  89-93 ;  Fiske,  Civil  Government,  226 ; 
Hart,  Actual  Government,  226,  237-239;  Hinsdale,  American  Govern- 
ment, 168;   Macy,  Our  Government,  183. 

39.  Contested  Elections. — When  a  person  is  elected  to 
be  a  member  of  the  House  of  Representatives  or  of  the 
Senate,  the  governor  of  his  State  issues  to  him  a  certificate 
of  election,  which  is  evidence  that  he  is  entitled  to  a  seat  in 
the  house  named  in  the  certificate.  The  evidence  is,  how- 
ever, not  conclusive,  for  the  Constitution  provides  that 
"each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members";  and  in  acting 
under  this  provision  each  house  maintains  a  committee 
on  elections,  and  to  this  committee  all  contested  cases  are 
referred.  Having  considered  these  cases  and  taken  such 
additional  evidence  as  may  be  had  or  may  be  desired  con- 
cerning them,  the  committee  makes  a  report  to  the  house, 
and  the  house  then  by  vote  renders  its  decision;  and  from 


THE  FEDERAL   LEGISLATURE  79 

this  decision  there  is  no  appeal.  In  a  contest  of  this  kind, 
Congress  makes  a  certain  allowance  to  the  constituents  to 
cover  the  expenses  of  the  case;  and  each  contestant  is 
likely  to  receive  the  full  support  of  the  party  to  which  he 
belongs. 

The  power  to  render  a  final  decision  on  the  election  of 
its  members  is  exercised  almost  universally  by  legislative 
bodies.  When  the  English  Parliament  was  struggling  to 
free  itself  from  royal  control,  the  possession  of  this  power 
was  necessary  to  success.  Without  it  the  king  might  have 
filled  the  House  of  Commons  with  his  partisans,  and  thus 
kept  Parliament  dependent  on  his  will.  Like  the  control  of 
the  purse,  it  furnished  a  point  of  advantage,  which  was 
seized  and  used  to  establish  parliamentary  independence. 
The  examination  and  settlement  of  questions  concerning 
the  election  of  its  members  having  become  a  recognized 
feature  of  English  parliamentary  procedure,  it  was  copied  by 
other  legislative  bodies,  as  many  other  points  of  English 
parliamentary  law  were  copied.  It  was  copied,  moreover, 
in  many  places  where  the  circumstances  of  its  origin  did  not 
exist.  This  was  true  of  the  United  States.  There  was  no 
reason  here  to  suppose  that,  without  the  power  to  decide 
cases  of  disputed  elections,  any  other  department  would 
curtail  the  constitutional  independence  of  the  legislature. 
The  question  to  be  decided  is  a  question  of  evidence,  de- 
manding a  judicial  investigation  and  decision;  and  there 
appears  to  be  no  other  institution  as  well  fitted  to  render 
such  a  decision  as  a  court  of  law.  At  present  all  cases 
of  contested  elections  for  the  House  of  Commons  are 
tried  by  the  common-law  judges.  This  reform  was  made 
in  1SG7. 

Topics. — Certificate  of  election. — Method  of  house's  action  on 
the  evidence  that  a  person  has  been  elected. — Reason  for  this  power 
in  House  of  Commons.— Reason  for  its  appearance  in  the  United 
States. — Change  in  England. 


80        THE   GOVERNMENT   OF   THE   UNITED   STATES 

References. — Dawes,  Uuw  Wc  Arc  Governed,  86;  Ford,  Ameri- 
can Citizen's  Manual,  19;  Hart,  Actual  Government,  220;  Hinsdale, 
American  G over mnent,  176;  Miller,  Lectures,  193. 

40.  Members  of  Congress. — Members  are  persons  who 
hold  certijficates  of  election  from  the  proper  authorities  ol 
their  respective  States,  whose  right  to  seats  in  one  house 
or  the  other  is  acknowledged  by  the  house  itself,  and  who 
have  taken  the  prescribed  oath  of  ofRce.  The  attendance 
of  members  is  presumed.  The  Constitution  authorizes  less 
than  a  c|uorum  to  compel  absentees  to  attend.  Absence  of 
any  member  without  leave  is  prohibited  by  the  rules  of  the 
house  to  which  he  belongs.  The  members  are  exempt  from 
arrest  during  their  attendance  at  sessions  and  in  their  going 
to  and  returning  from  them,  except  when  they  are  charged 
with  treason,  felony,  or  breach  of  the  peace.  The  reason 
of  this  exemption  is  found  not  in  a  desire  to  extend  special 
favors  to  members  of  Congress,  but  in  a  design  to  prevent 
interference  with  the  work  of  the  national  Legislature. 
But  for  this  privilege,  members,  in  case  of  closely  contested 
questions,  might  be  arrested  on  false  and  absurd  charges, 
and  temporarily  withheld  from  performing  their  proper 
legislative  functions,  if  certain  persons  were  interested  in 
keeping  them  from  voting. 

The  territorial  delegates  are  persons  elected  to  Congress 
by  a  territory.  They  are  sometimes  elected  by  the  terri- 
torial legislature  and  sometimes  by  the  people.  They  have 
seats  in  the  House  of  Representatives  and  may  take  part 
in  the  discussion  of  all  matters  relating  to  their  territor}', 
but  they  may  not  vote. 

Topics. — Description  of  members. — Attendance. — Exemption 
from  arrest. — Purpose  of  this  exemption. — Territorial  delegates. 

References. — Dawes,  How  We  Are  Governed,  96,  97;  Ford, 
American  Citizen's  Manual,  20,  21;  Hart,  Actual  Government,  227- 
231;  Hinsdale,  American  Government,  184,  185, 


THE  FEDERAL  LEGISLATURE  81 

41.  Quorum.— A  ([uoruiii  is  the  number  of  members  of  u 
legislature  or  a  deliberative  body  that  is  necessary  for  the 
legal  transaction  of  business.  In  a  })()pular  government 
it  is  important  that  the  quorum  of  a  legislative  body  should 
be  large,  in  order  that  no  measure  may  be  lawfully  ap- 
proved or  rejected  without  the  knowledge  and  cooperation 
of  the  bulk  of  the  members.  With  respect  to  this  matter 
Congress  shows  a  wide  departure  from  the  law  of  the  Eng- 
lish Parliament.  The  House  of  Commons  with  a  mem- 
bership of  G70,  has  a  quorum  of  forty;  and  the  House 
of  Lords,  with  almost  as  many  members,  has  a  quorum  of 
three.  The  quorum  of  each  house  of  Congress  was  fixed  by 
the  Constitution  in  the  provision  that  "a  majority  of  each 
shall  constitute  a  quorum  to  do  business,  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  author- 
ized to  compel  the  attendance  of  absent  members  in  such 
manner  and  under  such  penalties  as  each  house  may  pro- 
vide." A  similar  rule  applied  to  the  meetings  of  the  Con- 
gress under  the  Articles  of  Confederation,  except  that  the 
Continental  Congress  could  not  compel  the  attendance  of 
absent  members.  In  fact,  a  State  might  recall  her  delegates 
and  thus  prevent  the  transaction  of  business.  A  majority 
quorum  is  also  required  in  the  State  legislatures. 

The  rule  relating  to  the  number  of  the  quorum  having 
been  established,  it  became  important  to  determine  what 
members  should  be  counted  for  this  purpose.  Formerly,  a 
member  refraining  from  voting  on  a  question,  although 
present,  was  considered  as  not  forming  a  part  of  the  neces- 
sary quorum  for  that  occasion.  Under  this  rule  the  mem- 
bers of  the  opposition  miglit  refuse  to  vote,  and  thus  prevent 
action,  unless  the  dominant  party  was  able  to  assemble 
of  its  members  a  number  at  least  equal  to  a  majority  of  all 
the  members  of  the  house.  A  member  might  take  part  in 
the  debate  and  then  refuse  to  vote,  and  by  this  refusal 
become  constructively  absent  although  actually   ])rcsent. 


82   THE  GOVERNMENT  OF  THE  UNITED  STATES 

Whenever  the  dominant  party  had  only  a  small  majority, 
the  minority  in  this  way  might  carry  on  a  very  effective 
course  of  filibustering  and  delay  legislative  action.  In  the 
fifty-first  Congress  the  speaker  of  the  House  of  Represent- 
atives departed  from  custom  and  counted  for  a  quorum  all 
members  actually  present  whether  they  had  voted  on  the 
pending  question  or  not.  Laws  passed  under  this  inter- 
pretation of  the  quorum  have  been  found  by  the  Supreme 
Court  to  be  valid,  and  the  practice  thus  instituted  is  likely 
to  become  a  permanent  feature  of  congressional  procedure. 

Topics. — Definition  of  quorum. — Importance  of  large  quorum. — 
Quorum  in  Congress  compared  with  that  of  English  Parliament. — 
Members  to  be  counted  in  quorum. 

References. — Dawes,  Hoiv  We  Arc  Governed,  137;  Hinsdale, 
American  Government,  177. 

42.  Compensation  of  Members. — The  policy  of  not  pay- 
ing the  members  of  the  national  legislature,  which  at  pres- 
ent prevails  in  England,  makes  it  impossible ,  for  a  poor 
man,  however  marked  his  ability  as  a  legislator,  to  hold  the 
position  of  a  member,  unless  some  person  or  persons  can 
be  found  who  may  be  willing  to  undertake  to  pay  him  a 
salary  or  to  meet  his  expenses  during  the  term  of  his  service. 
This  policy  was  considered  inconsistent  with  the  funda- 
mental ideas  of  the  Government  of  the  United  States.  There 
were  also  grave  objections  to  having  the  members  paid  by 
the  constituents,  as  the  members  of  the  House  of  Commons 
were  paid  prior  to  1660.  The  project  to  leave  the  payment 
of  members  of  Congress  to  the  States  from  which  they  were 
elected  also  failed  to  receive  the  approval  of  the  Constitu- 
tional Convention.  It  was  feared  that  if  the  members  were 
left  dependent  on  the  States  for  their  compensation,  it 
would  be  impossible  to  establish  a  stable  government.  It 
was  therefore  determined  that  the  members  of  Congress — 
the  senators  as  well  as  the  representatives — should  be  paid, 


THE  FEDERAL  LEGISLATURE  83 

and  that  the  payment  should  be  made  from  the  funds  of  the 
Federal  Government,  the  amount  to  be  fixed  by  statute. 
The  amounts  actually  established  by  law  have  varied  from 
time  to  time.  At  first  the  members  of  Congress  were  paid 
$6  a  day,  with  $6  for  every  twenty  miles  of  travel.  Resides 
his  pay  as  a  member,  the  speaker  received  an  additional  $6 
a  day.  The  following  tabular  statement  shows  the  compen- 
sation the  members  of  Congress  have  received  in  different 

periods : 

(1)  26  years,  1789  to  1815,    $0  a  day. 

(2)  2  years,  181.5  to  1817,  $1,500  a  year. 

(3)  38  years,  1817  to  1855,    $8  a  day. 

(4)  10  years,  1855  to  1865,  $3,000  a  year. 

(5)  6  years,  1865  to  1871,  $5,000  a  year. 

(6)  3  years,  1871  to  1874,  $7,500  a  year. 

(7)  29  years,  187-1  to  ,  $5,000  a  year. 

The  speaker  of  the  House  and  the  president  of  the  Senate 
receive  each  $8,000  a  year. 

In  addition  to  the  compensation  of  $5,000  a  year  each 
member  receives,  at  present,  mileage  at  the  rate  of  twenty 
cents  a  mile,  a  certain  sum  for  clerk  hire,  and  also  an  allow- 
ance for  stationery  and  other  articles  necessary  in  the  per- 
formance of  his  legislative  duties. 

The  allowance  known  as  mileage  is  made  by  law  to 
members  of  Congress  for  their  journeys  to  and  from  Wash- 
ington. Constructive  mileage  was  an  allowance  for  journeys 
which  were  merely  supposed  to  be  made  when  Congress 
adjourned  or  an  extra  session  was  called.  Mileage  is  sup- 
posed to  be  calculated  on  the  basis  of  the  shortest  mail 
route  from  the  residence  of  the  member  of  Congress  to 
Washington.  Members  of  Congress  have,  however,  rendered 
accounts  for  mileage  for  journeys  to  Washington  reckoned 
by  some  other  than  the  shortest  mail  route.  In  1848, 
Horace  Greeley  published  a  statement  showing  the  distances 
the  members  would  have  traveled  by  the  shortest  mail 
route  and  the  distances  for  whicli  nii!oa,i;x'  was  actuallx'  paid. 


84    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  excess  of  distance  was  more  than  183,000  miles,  and 
the  excess  in  payment  for  the  thirtieth  Congress  was  over 
$73,000.  In  18G5  the  rate  of  mileage  was  reduced  from 
forty  to  twenty  cents  a  mile.  It  is  now  granted  for  one 
round  trip  each  session. 

Topics. — Policy  of  requiring  members  of  the  national  legislature 
to  serve  without  pay. — Payment  by  constituents.— Project  of  pay- 
ment by  States. — Plan  to  pay  from  funds  of  Federal  Government 
adopted. — Different  rates  of  payment  at  different  times. — Total 
compensation. 

References. — Dawes,  How  We  Are  Governed,  97;  Fiske,  Civil 
Government,  227;  Hart,  Actual  Government,  228;  Hinsdale,  Ameri- 
can Government,  182. 

43.  Members  of  Congress  and  Offices. — It  was  a  part 
of  the  general  plan  of  the  founders  of  the  Government  to 
have  the  offices  as  widely  distributed  as  possible.  They 
aimed  to  have  the  legislative,  executive,  and  judicial  func- 
tions performed  by  different  persons.  The  few  cases  in  which 
this  design  is  not  carried  out,  as  instanced  by  the  legislative 
functions  of  the  chief  executive  and  by  the  administrative 
functions  of  the  Senate,  are  exceptional.  In  carrying  out 
their  purpose  with  respect  to  the  members  of  Congress,  the 
makers  of  the  Constitution  provided  that  "no  senator  or 
representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  ofhce  under  the  authority 
of  the  United  States  which  shall  have  been  created,  or  the 
emoluments  whereof  shall  have  been  increased,  during  such 
time;  and  no  person  holding  any  ofhce  under  the  United 
States  shall  be  a  member  of  either  house  during  his  con- 
tinuance in  office."  This  makes  it  impossible  for  Congress 
to  create  offices  for  its  members.  The  reference  in  the 
second  part  of  the  provision  is  to  "  holding  any  office  under 
the  United  States. "  It  does  not  appear  to  prevent  a  member 
of  Congress  from  holding  a  State  office,  although  a  union  of 


THE  FEDERAL  LEGISLATURE  85 

Federal  and  State  offices  in  one  person  is  clearly  opposed  to 
the  spirit  of  the  Government.  It  prevents  a  member  of 
Congress  from  holding  a  seat  in  the  President's  Cabinet. 
This  prohibition  has  called  forth  abundant  comment,  and 
has  led  to  the  suggestion  that  such  constitutional  changes 
should  be  made  as  would  enable  Cabinet  officers  to  be  mem- 
bers of  Congress.  It  has  been  urged  that  in  this  respect 
the  United  States  should  imitate  England,  where  the  mem- 
bers of  the  Cabinet,  or  ministry,  are  at  the  same  time 
members  of  Parliament.  But  the  changes  in  governmental 
procedure  that  would  appear  in  carrying  out  such  a  measure 
have  prevented  a  very  wide  advocacy  of  it.  At  present  the 
members  of  the  Cabinet  and  the  President  have  charge  of 
executive  affairs,  but  they  have  no  power  to  introduce  bills 
directly.  When,  however,  they  wish  a  particular  matter 
presented  to  Congress  in  the  form  of  a  bill,  they  are  not 
likely  to  have  any  difficulty  in  finding  a  member  of  one 
house  or  the  other  who  is  willing  to  introduce  the  bill 
desired.  Under  the  English  system  the  ministry  has  charge 
of  the  executive  business  and  also  leads  the  majority  in 
Parliament  in  legislation;  it  brings  in  all  important  bills, 
controls  the  order  in  which  bills  shall  be  brought  up  for 
discussion  and  passage,  and  determines  what  action  shall 
be  taken  on  amendments  made  in  the  Parliament.  If  any 
important  bill  urged  by  the  ministry  is  opposed  by  the 
majority  of  the  Parliament,  the  ministry  is  expected  to 
resign;  for  it  must  be  supported  by  the  parliamentary 
majority.  Under  the  American  system  the  President  is 
elected  for  four  years,  and  tlie  members  of  his  Cabinet  hold 
office  during  his  pleasure;  and  the  votes  of  Congress  have  no 
influence  on  their  tenure  of  office.  In  France  the  parlia- 
mentary responsibility  of  the  ministry  with  an  elected 
president  has  contributed  to  frequent  changes  of  the  minis- 
try and  a  limitation  of  the  power  of  the  president  of  the 
republic. 


86        THE   GOVERNMENT   OF  THE   UNITED   STATES 

Topics. — Distribution  of  offices. — Position  of  members  of  Con- 
gress with  respect  to  office  under  the  United  States. — The  Cabinet 
and  Congress. 

References. — Dawes,  How  We  Are  Governed,  99,  100;  Hart, 
Actual  Government,  243,  244. 

44.  The  Speaker  of  the  House  and  the  President  of 
the  Senate, — The  Vice-rresident  of  the  United  States  is  the 
presiding  officer  of  the  Senate.  The  Senate  chooses  a  pres- 
ident pro  tempore  to  act  in  the  absence  of  the  Vice- 
President,  or  when  that  officer  "shall  exercise  the  office  of 
President  of  the  United  States."  The  speaker  or  presid- 
ing officer  of  the  Senate  may  call  any  member  to  preside  in 
his  place.  The  member  thus  called  acts  for  one  day  only, 
or  for  a  shorter  period.  Neither  the  Vice-President  nor  the 
president  pro  tempore  exercises  much  power.  The  Vice- 
President  presiding  votes  when  there  is  a  tie,  and  decides 
the  question.  The  president  pro  tempore  votes  as  a  member 
of  the  Senate;  but,  in  case  of  a  tie,  while  he  is  presiding  and 
after  he  has  voted,  he  has  no  power  to  decide  the  question 
by  a  casting  vote,  and  the  measure  is  lost.  Neither  appoints 
committees  nor  exerts  any  special  influence  on  the  conduct 
of  the  Senate's  affairs. 

The  office  of  Speaker  of  the  House  of  Representatives  is, 
on  the  contrary,  a  position  of  great  power.  The  speaker  is 
elected  by  the  members  from  their  own  number  in  accord- 
ance with  the  constitutional  provision  that  "the  House  of 
Representatives  shall  choose  their  speaker  and  other  offi- 
cers." One  of  the  sources  of  the  speaker's  great  power  is 
his  privilege  of  appointing  the  standing  committees  of  the 
House.  This  privilege  is  conferred  by  the  House  under  a 
rule  passed  on  the  first  of  January,  1790,  and  readopted 
by  every  Congress  since  then.  This  rule  is  that  "all  com- 
mittees shall  be  appointed  by  the  speaker  unless  otherwise 
specially  directed  by  the  House,"     In  appointing  these 


THE  FEDERAL  LEGISLATURE  87 

committees  the  speaker  decides  who  shall  be  the  chairman 
of  each;  he  also  provides  that  the  chairman  and  a  majority 
of  each  committee  shall  be  of  the  party  to  which  he  belongs. 
In  this  way  he  practically  determines  the  action  of  the  House 
and  the  course  of  congressional  legislation;  for  no  measure 
can  come  before  Congress  to  be  voted  on  that  is  not  l)r<)ught 
up  by  a  report  of  a  committee.  Another  source  of  the 
speaker's  power  is  his  right  to  control  the  proceedings  of 
the  House  to  such  an  extent  that  no  member  can  introduce 
a  motion,  report  a  bill,  or  make  a  speech  unless  recognized 
by  him.  The  speaker  usually  knows  beforehand  what 
members  wish  to  be  recognized;  for  they  have  conferred 
with  him,  and  he  has  a  list  of  their  names  before  him  during 
the  meeting.  His  attitude  toward  other  members  who  desire 
to  speak,  but  who  have  not  notified  him  of  their  wish  to  be 
heard,  is  that  of  a  person  with  a  ''previous  engagement." 
Even  a  member  of  the  dominant  party,  who  attempts  to 
bring  forward  an  important  measure  before  the  speaker  has 
been  consulted  about  it,  is  not  likely  to  be  recognized.  All 
persons,  therefore,  wishing  to  have  certain  laws  passed  find 
that  the  speaker,  before  all  others,  must  be  reckoned  with. 
The  speaker  is  a  member  of  the  House  of  Representa- 
tives, but  the  "  other  officers  "  are  not  members.  They  are 
a  clerk,  a  sergeant-at-arms,  a  doorkeeper,  a  postmaster,  and 
a  chaplain.  Besides  these,  there  is  a  large  number  of  minor 
employees,  including  pages,  messengers,  and  assistant  door- 
keepers. 

Topics. — Presiding  officer  of  the  Senate. — President  pro 
tempore. — Member  called  to  preside. — Case  of  a  tie. — The  speaker. 
— Election. — Speaker's  power. — Control  of  proceedings. — Other 
officers  of  the  House. 

References.— Dawes,  IIuw  We  Are  Governed,  120-145;  Fiske, 
Civil  Government,  228;  Ford,  American  Citizen's  Manual,  14,  18; 
Hart,  Practical  Essays,  1-20;  Hart,  Actual  Government,  231-233; 
Hinsdale,  American  Government,  1G2;  Miller,  Lectures,  198,  211,  219. 


88        THE   GOVERNMENT   OF  THE   UNITED  STATES 

45.  Congressional  Committees  and  Legislation. — In 
some  of  the  cantons  of  Switzerland,  as  well  as  in  some  of  the 
towns  of  New  England,  all  of  the  voters  come  together  to 
make  laws  for  the  canton  or  town.  It  would  evidently  be 
impossible  for  all  the  voters  of  a  State  like  New  York,  or  for 
all  the  voters  of  the  United  States,  to  assemble.  Hence, 
a  few  are  selected  as  members  of  the  State  legislature,  or 
as  members  of  Congress,  to  act  for  the  whole.  In  the  same 
way  there  are  many  things  which  a  large  body,  like  the 
Senate  or  the  House  of  Representatives,  has  to  do  that  can 
be  more  advantageously  done  by  a  small  number  of  members 
than  by  the  entire  assembly.  For  this  reason  each  house  of 
Congress  has  a  number  of  committees  among  which  are 
distributed  certain  parts  of  the  work  necessary  in  connection 
with  legislation.  In  the  Senate  the  committees  are  elected  by 
ballot.  This  involves  a  somewhat  elaborate  process.  Each 
party  in  the  Senate  has  its  own  organization.  The  members 
of  each  party  sometimes  hold  meetings  by  themselves,  in 
which  they  determine  what  position  they  will  assume  with 
respect  to  measures  before  the  Senate.  These  meetings  are 
called  party  caucuses.  The  party  chief  appoints  certain 
party  or  caucus  committees.  One  of  these  is  called  the 
Committee  on  Committees.  The  main  business  of  this  com- 
mittee is  to  nominate  persons  for  membership  in  the  various 
regular  committees  of  the  Senate.  When  the  two  party 
"  slates  "  are  made  up — that  is,  when  each  of  the  party  com- 
mittees on  committees  has  arranged  the  lists  of  the  candidates 
for  the  several  Senate  committees — the  lists  are  brought 
before  the  Senate  and  voted  on,  the  party  having  a  majority 
in  the  Senate  naturally  electing  the  committees  proposed  by 
its  party  Committee  on  Committees.  The  Republican 
Committee  on  Committees  has  varied  in  number  of  mem- 
bers during  the  last  fifty  years  from  three  to  nine;  while 
the  Democratic  Committee  on  Committees  for  many  years 
has  consisted  of  nine  members.     The  list  of  Senate  standing 


THE  FEDERAL  LEGISLATURE  89 

committees  given  in  the  footnote  indicates  the  large  number 
of  subjects  constantly  claiming  the  attention  of  the  Senate. ^ 

It  is  found  by  experience  that  both  the  majority  and 
the  minority  in  the  Senate,  as  well  as  in  the  Congress  as  a 
whole,  need  leaders  in  order  to  deal  effectually  with  the  mul- 
titude of  affairs  that  demand  consideration.  Each  party, 
therefore,  recognizes  a  small  number  of  its  older  and  abler 
members  as  a  so-called  "steering  committee."  These 
members  watch  the  course  of  legislative  events,  call  cau- 
cuses, decide  what  measures  to  bring  forward  for  action 
and  what  measures  to  pass  over,  and,  in  general,  direct  the 
forces  of  their  party. 

In  the  House  of  Representatives  the  standing  commit- 

*  In  the  Senate  there  are  the  folloTs-ing  committees:  On  Agriculture 
and  Forestry;  on  Appropriations;  to  Audit  and  Control  the  Contingent 
Expenses  of  the  Senate;  on  the  Census;  on  Civil  Service  and  Retrench- 
ment; on  Claims;  on  Coast  and  Insular  Survey;  on  Coast  Defenses;  on 
Commerce;  on  Corporations  Organized  in  the  District  of  Columbia;  on 
the  District  of  Columbia;  on  Education  and  Labor;  on  Engrossed  Bills; 
on  Enrolled  Bills;  to  Establish  the  University  of  the  United  States;  to 
Examine  the  Several  Branches  of  the  Civil  Service;  on  Finance;  on 
Fisheries;  on  Foreign  Relations;  on  Forest  Reservations  and  the  Protec- 
tion of  Game;  on  the  Geological  Survey;  on  Immigration;  on  the  Im- 
provement of  the  Mississippi  River  and  its  Tributaries;  on  Indian  Affairs; 
on  Indian  Depredations;  on  Interocoanic  Canals;  on  Interstate  Com- 
merce; on  Irrigation  and  Reclamation  of  Arid  Lands;  on  the  Judiciary; 
on  the  Library;  on  Manufactures;  on  Military  Affairs;  on  Mines  and 
Mining;  on  Naval  Affairs;  on  Organization,  Conduct,  and  Expenditures 
of  the  Executive  Departments;  on  Pacific  Islands  and  Porto  Rico;  on 
Pacific  Railroads;  on  Patents;  on  Pensions;  on  the  Philippines;  on  Post 
OfTices  and  Post  Roads;  on  Printing;  on  Private  Land  Claims;  on 
Privileges  and  Elections;  on  Pulilic  Buildings  and  Grounds;  on  Public 
Health  and  National  Quarantine;  on  Public  Lands;  on  Railroads;  on 
Relations  with  Canada;  on  Relations  with  Cuba;  on  the  Revision  of  the 
Laws  of  the  United  States;  on  Revolutionary  Claims;  on  Rules;  on 
Territories;  on  Transportation  Routes  to  the  Seaboard. 

Besides  those  standing  committees  the  Senate  creates  select  com- 
mittees for  special  purposes. 
7 


90        THE   GOVERNMENT  OF  THE  UNITED  STATES 

tees  of  that  body  are  appointed  by  the  speaker.  This  is 
the  speaker's  most  difficult  and  most  important  task  at  the 
beginning  of  each  Congress.  There  are  the  ambitions  of 
381  members  to  be  satisfied,  and  it  is  safe  to  say  that  this 
task  is  never  successfully  accomplished.  The  older  mem- 
bers are  usually  allowed  to  continue  on  the  committees 
where  they  have  served.  It  is  expected  that  the  chairmen 
of  all  of  the  House  committees  will  be  members  of  the 
dominant  party,  but  that  the  committees  will  embrace 
members  from  both  parties.  The  standing  committees  of 
the  House  of  Representatives  in  the  fifty-eighth  Congress 
numbered  fifty-five,  besides  three  joint  standing  commit- 
tees.i 

*  The  following  is  a  list  of  the  standing  committees  of  the  House  of 
Representatives  of  the  fifty-eighth  Congress:  On  Elections;  on  Ways 
and  Means;  on  Appropriations;  on  the  Judiciary;  on  Banking  and 
Currency;  on  Coinage,  Weights,  and  Measures;  on  Interstate  and  Foreign 
Commerce;  on  Rivers  and  Harbors;  on  the  Merchant  Marine  and 
Fisheries;  on  Agriculture;  on  Foreign  AfTairs;  on  Mihtary  Affairs;  on 
Naval  Affairs;  on  the  Post  Ofhce  and  Post  Roads;  on  the  Public  Lands; 
on  Indian  Affairs;  on  the  Territories;  on  Insular  AfTairs;  on  Railways 
and  Canals;  on  Manufactures;  on  Mines  and  Mining;  on  Public  Buildings 
and  Grounds;  on  the  Pacific  Railroads;  on  Levees  and  Improvements  of 
the  Mississippi  River;  on  Education;  on  Labor;  on  the  Militia;  on 
Patents;  on  Invalid  Pensions;  on  Pensions;  on  Claims;  on  War  Claims; 
on  Private  Land  Claims;  on  the  District  of  Columbia;  on  Revision  of  the 
Laws;  on  Reform  in  the  Civil  Service;  on  Election  of  President,  Vice- 
President,  and  Representatives  in  Congress;  on  Alcoholic  Liquor  Traffic; 
on  Irrigation  of  Arid  Lands;  on  Immigration  and  Naturalization;  on 
Ventilation  and  Acoustics;  on  Expenditures  in  the  State  Department; 
on  Expenditures  in  the  Treasury  Department;  on  Expenditures  in  the 
War  Department;  on  Expenditures  in  the  Na^y  Department;  on 
Expenditures  in  the  Post-Office  Department;  on  Expenditures  in  the 
Interior  Department;  on  Expenditures  in  the  Department  of  Justice; 
on  Expenditures  in  the  Department  of  Agriculture;  on  Expenditures 
on  Public  Buildings;  on  Rules;  on  Accounts;  on  Mileage;  on  the  Census; 
on  Industrial  Arts  and  Expositions.  Also  the  following  joint  standing 
committees,  viz.  :  On  the  Librarj';  on  Printing;  on  Enrolled  Bills. 


THE   FEDERAL   LEGISLATURE  91 

In  the  first  years  of  Congress  the  Senate  was  largely 
engaged  in  executive  business.  In  the  field  of  legislation, 
measures  concerning  the  national  debt,  plans  of  taxation, 
and  expenditures  were  especially  important;  and  it  was 
recognized  that  the  initiative  in  these  matters  belonged  to 
the  House  of  Representatives.  The  House  was  therefore 
obliged  to  appoint  committees  very  early.  In  1802  there 
were  five,  and  the  number  was  afterward  increased  as  the 
amount  and  variety  of  the  business  grew.  In  the  Senate 
there  were  no  standing  committees  until  1816,  and  usually 
the  committees  of  the  Senate  have  been  less  numerous  than 
those  of  the  House. 

The  chairman  of  each  committee  is  the  first  person 
named  in  the  official  list  of  the  members  published  at  the 
time  of  their  appointment.  He  has  a  secretary,  who  is 
paid  by  Congress;  and  the  committee  has  a  room  provided 
for  its  meetings.  These  meetings  are  nominally  secret, 
but  the  public  is  usually  informed  of  all  important  con- 
clusions reached  from  day  to  day.  The  real  purpose  of  the 
congressional  committees  is  to  facilitate  the  examination 
of  the  bills  referred  to  them.  They  make  it  possible  for 
Congress  to  do  thoroughly  what,  without  the  committees, 
it  would  not  be  able  to  do  at  all. 

"The  committee  of  the  whole"  is  the  term  a{)plicd  to  all 
the  members  of  a  legislative  assembly  sitting  without  the 
restraint  of  the  rules  which  usually  govern  that  body. 
When  the  House  of  Representatives  goes  into  a  committee 
of  the  whole,  the  speaker  calls  some  other  member  to  the 
chair.  The  members  then  enjoy  a  freedom  in  debate  not 
permitted  in  the  assembly  organized  as  the  House.  When 
the  committee  of  the  whole  has  finished  its  discussion  of 
the  subject  intrusted  to  it,  the  speaker  resumes  the  chair, 
and  the  chairman  of  the  committee  of  the  whole  reports  to 
the  House;  and  this  report  may  be  treated  in  the  same 
manner  as  the  report  of  any  other  committee.     In  com- 


92    THE  GOVERNMENT  OF  THE  UNITED  STATES 

mittce  of  the  whole,  the  debate  is  carried  on  without  refer- 
ence to  the  rules  of  the  House;  a  member  may  speak  on  any 
question  under  consideration  as  often  as  he  can  get  the 
floor;  the  previous  question  cannot  be  moved,  and  motions 
cannot  be  laid  on  the  table.  All  important  public  bills 
before  the  House,  relating  to  trade,  revenue,  or  the  grant  of 
l^ublic  money,  are  considered  in  committee  of  the  whole. 

The  rule  of  the  Senate  respecting  this  matter  is  that 
"all  bills  and  joint  resolutions  which  shall  have  received 
two  readings  shall  first  be  considered  by  the  Senate  as  in 
committee  of  the  whole,  after  which  they  shall  be  reported  to 
the  Senate;  and  any  amendments  made  in  comtnittce  of  the 
whole  shall  again  be  considered  by  the  Senate,  after  which 
further  amendments  may  be  proposed." 

The  most  powerful  committee  of  the  House  is  the  Com- 
mittee on  Rules.  This  is  a  committee  of  five  members: 
the  speaker  of  the  House,  two  other  members  of  the  domi- 
nant party,  and  two  of  the  minority.  The  speaker  and  the 
two  other  members  of  his  j^arty  constituting  a  majority, 
are  able  to  make  decisions  for  the  committee.  The  great 
power  of  the  committee  is  derived  from  the  fact  that  it 
arranges  the  order  in  which  business  may  be  done  in  the 
House;  that  it  practically  determines  when  any  committee 
may  be  allowed  to  report  on  a  bill  that  has  been  assigned 
to  it,  and  that  it  fixes  the  time  when  a  report  on  a  bill  may 
be  discussed,  and  the  amount  of  time  that  may  be  given  to 
its  discussion.  It  may  thus  advance  a  bill  that  appears  to 
it  important,  and  hold  back  a  bill  that  seems  to  be  less 
urgent. 

The  history  of  the  passage  of  a  bill  through  its  various 
stages  till  it  becomes  a  law  illustrates  the  services  rendered 
by  the  committees  in  the  business  of  legislation.  A  bill 
is  a  proposition  for  legislation  in  the  form  of  a  law.  It  is 
drawn  either  by  a  member  of  the  House  or  by  some  other 
person,  and  placed  in  the  hands  of  a  member  to  be  intro- 


THE  FEDERAL   LEGISLATURE  93 

duced.  In  the  broadest  sense,  a  bill  is  any  legislative 
proposition  that  can  come  before  Congress.  In  this  sense 
a  joint  resolution  is  a  bill.  Private  bills  include  bills  for 
the  relief  of  private  persons,  pension  bills,  and  bills  remov- 
ing political  disabilities.  Members  introducing  private 
bills,  petitions,  or  memorials  "deliver  them  to  the  clerk, 
indorsing  their  names  and  the  reference  or  disposition  to 
De  made  thereof. "  ^  These  petitions,  memorials,  and 
private  bills  are  then  entered  on  the  Journal,  with  the 
names  of  the  members  presenting  them.  A  copy  of  this 
entry  is  published  in  the  Congressional  Record.  All  other 
bills,  memorials,  and  resolutions  are  delivered  in  the  same 
manner,  indorsed  with  the  names  of  the  members  introduc- 
ing them,  to  the  speaker,  and  are  referred  by  him  to  their 
appropriate  committees.  The  bills,  resolutions,  and  docu- 
ments thus  referred  are  entered  on  the  Journal,  and,  as  in 
the  case  of  private  bills,  the  entry  is  printed  in  the  Con- 
gressional Record.  The  bill  having  been  introduced  into 
the  House,  and  read  twice  on  different  days,  the  first  time 
by  title  and  the  second  time  in  full,  passes  into  the  hands 
of  one  of  the  standing  committees.^  The  committee  hav- 
ing charge  of  the  bill  practically  determines  its  fate.  Of 
course,  no  committee  has  power  formally  to  reject  a  bill; 
but  if  a  bill  received  is  not  approved  by  the  committee  it 
may  be  reported  to  the  House  with  the  recommendation 
that  it  "do  not  pass,"  or  it  may  be  neglected  and  lie  in  the 
committee,  and  expire  with  the  Congress.  A  committee 
receiving  a  bill  referred  to  it  has  full  power  over  it,  but  cannot 
change  its  title  or  subject.  It  may,  however,  set  aside  all  the 
sections  of  the  bill  and  substitute  other  sections  covering 
the  same  subject.  In  considering  an  important  bill  the  com- 
mittee having  it  in  cliarge  is  accustomed  to  summon  various 
persons  to  furnish  information  as  to  the  character  and  need 

*  Rules  of  the  IIouRe  nj  Re  present  niirea,  xxii. 

2  Rules  and  Practice  oj  the  House  of  Representatives,  1G3~1GS;  281-285. 


94        THE   GOVERNMENT  OF  THE  UNITED  STATES 

of  the  legislation  proposed  by  the  bill  in  question.  The 
persons  summoned  are  required  to  present  the  information 
they  have  to  communicate  in  the  form  of  a  continuous  state- 
ment, or  this  information  may  be  drawn  out  by  a  system  of 
questioning  and  cross-questioning.  The  questions,  as  well  as 
the  statements  of  the  persons  giving  the  information,  are 
printed  for  the  use  of  members  of  the  committee  and  of  the 
House,  particularly  when  the  bill  under  consideration  deals 
with  matters  of  great  importance.  When  a  committee  re- 
ports to  the  House,  an  hour  is  set  apart  for  debating  the  bill 
recommended  in  the  report.  The  member  making  the  report 
and  having  charge  of  the  business  determines  who  shall 
participate  in  the  debate  during  this  period.  He  may 
occupy  the  whole  hour  himself,  if  he  wishes;  but  this  is  not 
customary.  "  He  does  not,  of  course,  yield  his  time  in- 
discriminately to  anyone  who  wishes  to  speak.  He  gives 
way,  indeed,  as  in  fairness  he  should,  to  opponents  as  well  as 
to  friends  of  the  measure  under  his  charge;  but  generally 
no  one  is  accorded  a  share  of  his  time  who  has  not  obtained 
his  previous  promise  of  the  floor;  and  those  who  do  speak 
must  not  run  beyond  the  number  of  minutes  he  has  agreed 
to  allow  them."  ^  In  this  hour,  moreover,  no  amendment 
may  be  made  without  the  consent  of  the  member  who  has 
reported  for  the  committee,  and  who  controls  the  discussion. 
The  procedure  here  described  indicates  the  power  of  com- 
mittees in  legislation.  The  chairman  of  each  committee 
has  extensive  privileges  with  respect  to  all  business  referred 
to  his  committee. 

In  the  English  Parliament  the  ministry  holds  the  posi- 
tion of  a  single  powerful  committee  and  is  largely  respon- 
sible for  the  character  of  the  laws  passed.  As  Mr.  Bryce 
says,  "If  a  bad  act  is  passed  or  a  good  bill  rejected,  the 
blame  falls  primarily  upon  the  ministry  in  power."  ^ 

'  Wilson,  Congressional  Government,  76. 
^  American  Commonwealth,  i,  156. 


THE  FEDERAL  LEGISLATURE  95 

Persons  accustomed  to  the  English  system  have  some- 
times been  disposed  to  criticise  the  American  system,  under 
which  a  large  number  of  committees  exercise  almost  equal 
authority  with  respect  to  the  subjects  committed  to  them 
respectively.  They  have  called  attention  to  the  fact  that 
in  this  extensive  subdivision  of  the  work  nobody  appears 
to  be  responsible.  In  case  bad  laws  are  passed  the  Cabinet 
cannot  be  blamed,  for  it  has  no  voice  in  lawmaking.  The 
House  may  shirk  responsibility  on  the  ground  that  it  was 
in  a  position  where  it  was  practically  obliged  to  follow  the 
decision  of  the  committee;  and  the  great  number  of  the 
committees,  whose  members  are  generally  unknown,  make 
it  impossible  to  call  anybody  to  account.  The  difficulty 
or  impossibility  of  properly  fixing  responsibility  for  bad  laws 
is  set  down  as  one  of  the  defects  of  the  American  system. 
Other  defects  are  that  it  facilitates  corruption,  and  by 
destroying  the  unity  of  the  legislative  machine  produces 
laws  not  necessarily  in  proportion  to  the  legislation  actually 
needed. 

On  the  other  hand,  there  are  certain  advantages  of  the 
American  system  of  many  committees: 

1.  It  furnishes  agencies  for  examining  the  large  number 
of  bills  introduced,  and  smothering  those  that  ought  not 
to  be  allowed  to  survive  and  take  up  the  time  of  the  whole 
legislative  body. 

2.  Each  committee  constitutes  a  small  and  efficient 
body  for  gathering  information  concerning  the  subjects 
of  the  bills  referred  to  it.  liy  this  means  many  lines  of 
investigation  may  be  carried  on  at  the  same  time. 

3.  Through  inquiries  carried  on  by  (he  committees, 
the  House  may  have  at  its  command  extensive  and  detailed 
information  concerning  the  conduct  of  the  various  depart- 
ments. 

4.  This  system  furnishes  opportunities  for  making 
specially  qualified  members  chairmen  of  committees,  and 


96        THE   GOVERNMENT   OF  THE  UNITED   STATES 

thus  bringing  their  special  knowledge  and  training  to  bear 
on  important  departments  of  the  Government. 

5.  In  the  committees,  the  administrative  officers,  par- 
ticularly members  of  the  Cabinet,  have  opportunities  to 
urge  such  legislative  measures  as  are  of  special  interest  to 
the  executive  departments;  and  by  this  means  there  is 
extended  to  the  members  of  the  Cabinet  some  of  the  facilities 
for  influencing  legislation  that  are  enjoyed  by  the  English 
ministry. 

Topics. — Reason  for  committees  in  the  Senate  and  the  House. — 
Appointment  of  committees. — Committee  on  Committees. — The 
Steering  Committee. — Relation  of  committees  to  dominant  party. — 
Committee  of  the  Whole. — Committee  on  Rules. — Work  of  com- 
mittees in  legislation.  —  In  special  functions.  —  Advantages  of 
American  system  of  many  committees. 

References. — Bryce,  American  Commonwealth,  i,  150-170; 
Dawes,  How  We  Are  Governed,  127,  141 ;  Hart,  Actual  Government, 
2.33-254;  Macy,  Our  Government,  185-188;  Wilson,  Congressional 
Government,  60-130. 

44.  Enacting  a  Law. — When  a  bill  is  reported  to  the 
Senate  or  the  House  by  the  committee  that  has  had  it  in 
charge,  it  is  read  a  third  time;  that  is  to  say,  its  title  is 
announced,  and  it  is  brought  to  the  attention  of  the  House 
for  final  action. 

The  enacting  clause  of  a  bill  before  either  house  of  Con- 
gress is:  "  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  asscmhled." 
An  amendment  is  any  proposed  change  in  a  motion  or  a 
bill.  Any  amendment  may  be  amended,  but  an  amendment 
to  the  second  amendment  will  not  be  accepted.  Having 
passed  both  houses,  the  bill  is  signed  by  the  speaker  of  the 
House  and  the  president  of  the  Senate,  and  sent  to  the 
President  for  his  signature.  If  not  returned  within  ten 
days  after  it  shall  have  been  presented  to  the  President,  it 


THE   FEDERAL  LEGISLATURE  97 

"shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  un- 
less the  Congress  by  their  adjournment  prevent  its  return, 
in  which  case  it  shall  not  be  a  law."  Any  bill  may  originate 
in  either  house,  except  bills  for  raising  a  revenue,  which 
shall  originate  in  the  House  of  Representatives.  But  reve- 
nue bills  originating  in  the  House  may  be  amended  in  the 
Senate.  The  English  House  of  Commons,  in  its  struggle 
with  royal  authority,  insisted  on  originating  all  revenue 
bills.  This  gave  the  Commons  virtual  control  of  the  na- 
tional treasury  and  made  possible  the  achievement  of  its 
independence.  The  circumstances  which  led  to  the  estab- 
lishment of  this  principle  in  England  were  wanting  in  the 
United  States,  yet  in  spite  of  this  fact  the  English  prece- 
dent was  followed. 

In  the  course  of  a  bill's  progress  through  Congress,  a 
rider  is  sometimes  attached  to  the  bill.  A  rider  is  a  clause, 
a  paragraph,  or  a  section  added  to  a  bill,  dealing  with  a 
subject  other  than  that  treated  of  in  the  bill.  It  is  thus 
added  for  the  purpose  of  overcoming  an  objection  to  it,  which 
does  not  exist  with  respect  to  the  bill  to  which  it  is  attached. 
It  is  resorted  to  where  the  majority  in  the  Legislature  is 
sufficient  to  pass  it  as  a  separate  bill,  but  not  sufficient  to 
pass  it  over  the  Executive  veto,  and  particularly  where  it 
is  known  that  as  a  separate  bill  it  would  be  vetoed.  By 
attaching  it  to  some  necessary  bill,  as,  for  example,  to  the 
general  appropriation  bill,  it  is  expected  that  it  will  receive 
the  formal  approval  of  the  Executive;  for  it  is  supposed 
that  he  will  be  less  reluctant  to  have  it  become  a  law  than  to 
incur  the  odium  of  embarrassing  the  Government  by  vetoing 
the  appropriation  bill.  In  order  that  a  rider  may  be  em- 
ployed effectively,  the  Executive  must  be  under  obligation 
to  approve  or  to  veto  a  bill  as  a  whole.  To  prevent  resort 
to  this  legislative  device  in  State  legislatures,  many  of  the 
States  require  a  bill  to  relate  to  only  a  single  subject,  and 
give  to  the  governor  the  power  to  veto  parts  of  appropria- 


98   THE  GOVERNMENT  OF  THE  UNITED  STATES 

tion  bills  and  to  approve  other  parts.  It  has  been  suggested 
that  the  President  should  be  granted  this  power. 

Concurrent  resolutions  are  resolutions  "  adopted  by 
both  houses,  chiefly  on  the  subject  of  adjournment  of  the 
session."  They  do  not  require  the  President's  signature. 
On  the  contrary,  a  joint  resolution  is  adopted  by  both 
houses,  but  requires  the  signature  of  the  President. 

A  joint  resolution  is  introduced  in  the  same  manner  as  a 
bill;  and,  after  it  has  passed  both  houses,  it  requires  the 
approval  of  the  President  in  order  to  be  valid.  It  was 
used  instead  of  a  treaty  in  the  annexation  of  Texas,  in  1845; 
also  in  the  annexation  of  Hawaii,  in  1898.  A  joint  resolu- 
tion may  sometimes  be  passed  where  a  treaty  would  be 
defeated.  It  would  have  required  a  two-thirds  vote  of  the 
Senate  to  annex  Texas  or  Hawaii  by  treaty,  but  only  a 
majority  of  the  Senate  and  of  the  House  of  Representatives 
was  required  to  adopt  a  joint  resolution.  By  this  means  a 
large  opposition  minority  in  the  Senate  may  be  defeated. 

Topics. — Reading  a  bill. — Enacting  clause. — Amendments. — 
Place  of  origin. — A  rider. — Concurrent  resolutions. — A  joint  resolu- 
tion. 

References. — Dawes,  How  We  Are  Governed,  150-160;  Ford, 
American  Citizen's  Manual,  i,  22-26;  Hart,  Practical  Essays,  206- 
233;  Hart,  Actual  Government,  245-256;  Hinsdale,  American  Gov- 
ernment, 187-192. 

45.  Voting  in  Congress. — Voting  in  Congress  is  usually 
viva  voce,  or  by  "yeas  and  nays."  The  ballot  is  seldom 
used,  but  the  Constitution  requires  that  the  yeas  and  nays 
shall  be  entered  on  the  record  on  the  demand  of  one-fifth 
of  the  members  present.  It  is  required,  also,  that  the  yeas 
and  nays  shall  be  recorded  in  cases  of  votes  on  bills  vetoed 
by  the  President.  A  two-thirds  vote  is  required  to  suspend 
the  rules,  to  modify  the  adopted  order,  or  to  pass  in  either 
house  a  bill  vetoed  by  the  President.     The  two-thirds  h.crc 


THE  FEDERAL  LEGISLATURE  99 

referred  to  is  construed  to  be  two-thirds  of  the  members 
present.  The  calling  of  the  roll  for  yeas  and  nays  is  some- 
times used  by  a  filibustering  minority  to  delay  the  transac- 
tion of  business,  which  is  the  main  purpose  of  the  obstruct- 
ive tactics  designated  by  the  term  "filibustering." 

As  used  with  reference  to  legislation  in  the  United  States, 
the  term  "filibustering"  is  applied  to  the  attempts  of  the 
minority  of  a  legislative  body  to  delay  the  taking  of  a  vote. 
The  methods  employed  are  different  under  different  cir- 
cumstances. In  the  Senate  there  is  no  rule  for  closing  a 
debate,  and  senators  have  sometimes  taken  advantage  of 
this  freedom,  by  long  speeches  to  prevent  action  on  meas- 
ures obnoxious  to  the  minority.  The  Federal  Elections  Bill 
was  under  discussion  during  December,  1900,  and  January 
and  February,  1901.  The  minority  sought  to  defeat  the 
measure  by  tiring  out  the  majority,  and  succeeded  both  in 
this  and  in  defeating  the  bill  by  making  twenty-five  long 
speeches  against  it,  and  by  announcing  that  they  would 
talk  indefinitely. 

Under  the  rules  of  the  House  there  are  effective  ways 
of  checking  filibustering.  In  the  first  place,  any  member 
who  can  get  the  floor  may  move  "  that  the  previous  question 
be  now  put."  This  means  that  the  pending  question,  the 
question  under  discussion,  be  voted  on.  As  the  motion 
of  the  "  previous  question "  is  not  debatable,  the  speaker 
must  put  it  at  once.  If  carried,  the  debate  ceases,  and  the 
question  which  the  opposition  has  been  trying  to  delay 
must  be  voted  on.  In  the  second  place,  the  rules  of  the 
House,  with  respect  to  the  number  and  length  of  the  speeches 
that  members  may  make,  render  it  practically  impossible 
to  carry  on  a  filibustering  campaign  with  long  and  frequent 
speeches.  On  the  other  hand,  by  moving  that  the  House 
adjourn,  that  it  take  a  recess,  or  that  when  it  adjourns 
it  adjourn  to  some  specified  time,  or  by  making  other  mo- 
tions that  are  strictly  legitimate  under  the  rules,  much  time 


100      THE   GOVERNMENT   OF  THE  UNITED  STATES 

may  be  consumed,  particularly  as  these  motions  involve,  each 
time,  calling  the  roll  of  an  assembly  of  nearly  400  members. 
A  tie  vote  is  that  in  which  equal  numbers  of  votes  are 
given  on  the  two  sides  of  the  question.  In  such  a  case  the  mo- 
tion is  lost.  This  is  the  rule  in  the  House,  and  the  speaker 
votes  only  when  his  vote  would  be  decisive  if  counted.  The 
casting  vote  is  given  in  the  Senate  by  the  Vice-President 
in  case  of  a  tie,  but  this  power  is  not  exercised  by  the  presi- 
dent yro  tempore.  The  previous  question  is  the  name  given 
to  a  motion  that  the  debate  cease,  and  that  a  vote  be  taken 
immediately  on  the  question  under  consideration.  This  mo- 
tion is  not  debatable,  and  is  used  only  in  the  House.  The 
Senate  makes  use  of  no  such  means  for  closing  a  debate. 

Topics. — Methods  of  voting. — Roll-call  in  filibustering. — Re- 
quirement of  two-thirds  vote. — A  tie. — The  previous  question. 

References. — Dawes,  How  We  Are  Governed,  133-137,  144; 
Hart,  Actual  Government,  252;  Hinsdale,  American  Governvient,  179; 
Miller,  Lectures,  197. 

46.  Parliamentary  Law. — The  course  of  business  in 
Congress  is  conducted  under  a  body  of  rules,  regulations, 
and  laws  which  are  comprehended  in  the  general  designa- 
tion of  parliamentary  law.  The  essential  features  of  this 
law  have  their  origin  in  the  usages  of  the  British  Parlia- 
ment, and  have  been  carried  to  other  nations  as  other 
nations  have  imitated  the  legislative  institutions  and  prac- 
tice of  England.  In  passing  from  England  to  other  coun- 
tries, or  in  being  applied  to  different  legislative  bodies 
existing  under  different  social  conditions,  this  law  has  under- 
gone certain  modifications;  but  even  under  these  new 
conditions  it  has  retained  the  main  characteristics  which 
it  possessed  in  the  country  of  its  origin. 

Topics. — Definition  of  parliamentary  law. — Origin  of  it. 

References.— Hart,  Actual  Government,  239-244;  Hinsdale, 
American  Government,  178;  Miller,  Lectures,  194-196. 


THE  FEDERAL  LEGISLATURE  101 

FOR  ADVANCED  STUDY 

Organization  of  the  Qovernment  under  President 
Washington. — Hunt,  Lije  oj  James  Madison,  168,  1G9;  Schouler, 
United  States,  i,  80-105;  McMaster,  United  States,  i,  533-535,  540- 
544;  Hart,  Formation,  141-143;  Hildreth,  United  States,  iv,  101-108; 
Lodge,  Washington,  ii,  61-72;  Hart,  Formation,  143-145;  Johnston, 
American  Politics,  20,  21 ;  H.  von  Hoist,  Constitutional  Law,  67-77 ; 
Bryce,  American  Commonwealth,  i,  Chap.  IX;  Madison's  Letters,  i, 
423-427;  Hamilton,  The  Federalist,  No.  84. 

Treaty  with  Great  Britain,  November  19,  1794  (Jay's 
Treaty). — MacDonald,  Select  Documents,  ii,  114-130;  Pcllew,  John 
Jay,  301-317;  MciMastcr,  United  States,  ii,  212-235,  245-256,  263- 
284;  Hunt,  James  Madison,  Chap.  XXIII;  Lodge,  Washington,  ii, 
176-207;  H.  von  Hoist,  United  States,  ii,  122-128;  Hildreth,  United 
States,  iv,  539-564,  584-616;  Johnston,  American  Politics,  37-39; 
Gordy,  Political  Parties,  i.  Chap.  XV;  Schouler,  United  States,  i,  289- 
305,  307-314;  Hart,  Formation,  162,  163;  Hart,  Contemporaries,  iii, 
315-319;  Hamilton,  Works,  v,  106-137;  Ames,  Works,  ii,  37-71;  ed. 
1809,  58-93. 

How  Federal  Laws  Are  Made. — North  American  Review, 
clix,  537-544;  clxii,  14-20;  Albany  Law  Journal,  xlviii,  386-390; 
American  Bar  Association  Reports,  1887,  396-405;  Wilson,  Con- 
gressional Government,  Chaps.  II-IV;  Parton,  Topics  of  the  Time, 
Nos.  3,  6,  8;  American  Historical  Association  Papers,  v,  367-375; 
H.  von  Hoist,  Constitutional  Law,  H  31-34;  Bryce,  American  Com- 
monwealth, i.  Chaps.  XVI-XXI ;  Follctt,  The  Speaker,  Chaps.  IV- 
IX;  Hart,  Practical  Essays,  No.  9;  Lodge,  Historical  and  I^olitical 
Essays,  169-197. 

The  Organization  and  Proceedings  of  Congress. — Fol- 
lett.  The  Speaker;  Hinsdale,  American  Government,  Chaps.  XVI- 
XXV;  Bryce,  American  Commonwealth,  i,  Chaps.  X-XXI;  H.  von 
Hoist,  Constitutional  Law,  §?  20-24,  28-34;  Cooley,  Constitutional 
Law,  47-52,  54-99;  Ford,  American  Politics,  Chcips.  XVIII-XXI; 
Kerr,  United  States  Senate;  Lalor,  Cyclopaedia,  see  articles  on 
Censures,  Congress  (U.  S.),  Congress  (Powers),  Congress  (Sessions), 
House  of  Representatives,   Riders,   Salary  Grab,   Senate;  Wilson, 


102      THE   GOVERNMENT   OF  THE   UNITED  STATES 

Congressional  Governmcni;  Lowell,  Essays  on  Government;  McKee, 
Manual  of  Congressional  Practice;  McConachie,  Congressional 
Committees. 

The  Speaker. — Bryce,  American  Commonioealth,  i,  128-141; 
Benton,  Thirty  Years'  View;  Blaine,  Twenty  Years  in  Congress; 
Cox,  Three  Decades;  John  Sherman,  Recollections;  Follett,  The 
Speaker,  Chaps.  11,  111,  X,  XI;  Hart,  Practical  Essays,  No.  1; 
Congressional  Record. 

The  Formation  and  Work  of  Congressional  Commit= 
tees. — McConachie,  Congressional  Committees;  Snow,  Defense  of 
Congressional  Government  (American  Historical  Association  Papers, 
iv,  309-328);  Bryce,  American  Commonwealth,  i.  Chaps.  XIV,  XV; 
H.  von  Hoist,  Constitutional  Law,  H  32,  37:  Congressional  Record; 
House  and  Senate  Reports. 

The  Legal  Tender  Acts. — See  Legal  Tender  Cases,  12 
AVallace,  457;  110  United  States,  421;  Dewey,  Financial  History, 
362-367;  Knox,  United  States  Notes,  156-166;  Hart,  Life  of  Chase, 
389-414;  Upton,  Money  in  Politics,  157-170. 

Description  of  the  House  of  Representatives  in  Action. 

— Congressional  Record;  Congressional  Directory;  Harrison,  This 
Country  of  Ours,  45-48;  Bryce,  American  Commonwealth,  i,  138-170; 
Rules  and  Practice  of  the  House  of  Representatives. 

The  Election  of  United  States  Senators. — Dallinger, 
Nominations  for  Elective  Offices,  89;  Bryce,  American  Common- 
wealth, i,  95,  108-120;  Forum,  IS:  270-278;  21:  385-397;  Atlantic 
Monthly,  (j8:  227-232. 

The  Powers  of  the  Speaker.— Follett,  r/teSpcaA-cr;  Bryce; 
A77ierica>i  Commonwealth,  i,  48,  134-137,  391;  Rules  and  Practice  oj 
the  House  of  Representatives.     See  Digest. 


CHAPTER  V 

WHAT    CONGRESS    CAN    DO 

49.  The  General  Rule. — We  shall  be  able  to  get  a  clear 
idea  of  this  subject  if  we  remember  that  Congress  can  do 
only  those  things  that  it  is  authorized  to  do  by  the  language 
of  the  Constitution.  The  part  of  the  Constitution  which 
deals  with  this  matter  is  the  eighth  section  of  the  first 
article.  This  section  should  be  carefull}^  read  at  this  point. 
The  powers  that  are  conveyed  to  the  Congress  by  it  are 
called  delegated  powers.  They  arc  called  so  because  the 
Constitution  in  the  beginning  was  adopted  by  the  States, 
and  the  States  were  thought  of  as  giving  up,  or  delegating, 
to  the  central  Legislature  some  of  the  powers  which  they 
had  possessed.  All  the  powers  that  were  not  thus  given  u]), 
or  delegated,  wore  retained  by  the  States.  This  is  the  reason 
for  calling  the  powers  which  the  States  now  have,  "  reserved  " 
powers.  They  have  not  been  given  away.  They  have  been 
reserved.  The  tenth  amendment  to  the  Constitution  ex- 
presses this  in  the  simplest  possible  way.  It  says,  "the 
powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  arc  reserved  to 
the  States  respectively,  or  to  the  people." 

The  Articles  of  Confederation  expressed  a  similar  idea, 
but  contained  the  word  expressly  before  "delegated."  The 
makers  of  the  Constitution  omitted  this  word,  because  they 
saw  that  it  would  be  impossible  to  indicate  expressly  and 
in  detail  all  the  subjects  on  which  the  powers  of  the  Federal 

103 


104      THE   GOVERNMENT   OF   THE   UNITED   STATES 

Government  might,  in  the  future,  be  exerted.  They  wished 
Congress  to  be  able  to  do  whatever  might  be  necessary  to 
carry  into  execution  the  powers  that  might  be  expressly 
granted.  The  powers  that  were  not  expressly  granted,  but 
were  necessary  to  make  effective  those  that  were  expressly 
granted,  came  to  be  called  "implied"  powers.  The  char- 
acter of  these  implied  powers  may  be  illustrated  in  this 
way:  Congress  was  expressly  authorized,  among  other 
things,  to  raise  and  support  armies;  but  it  was  not  expressly 
authorized  to  issiie  paper  money  and  make  it  legal  tender 
for  the  payment  of  debts.  But  Congress  did,  during  the 
Civil  War,  issue  paper  money  and  made  it  legal  tender.  It 
claimed  that  it  could  do  this  because  the  use  of  such  paper 
money  was  necessary  to  enable  it  to  maintain  the  armies 
it  was  authorized  to  raise  and  support;  hence,  in  the 
opinion  of  Congress,  it  was  implied  that  that  body  might 
issue  the  money  in  question.  Whether,  in  any  case,  a 
claim  like  this  is  valid  has  to  be  determined  by  the  courts. 

Topics. — General  rule  as  to  power  of  Congress. — Delegated 
powers. — Reserved  powers. — The  tenth  amendment. — Implied 
powers. — Reason  for  not  requiring  powers  to  be  expressly  dele- 
gated. 

References. — Miller,  Lectures,  227-23G;  Cooley,  Constitutional 
Law,  54. 

50.  Taxation. — Congress  can  levy  and  collect  taxes.  It 
is  through  taxation  that  the  Government  receives  funds  for 
meeting  its  numerous  expenses.  In  order  that  civilized 
society  may  exist,  men  must  have  rights  and  be  able  to 
make  them  recognized;  but  rights  are  created  or  authorita- 
tively defined  by  government,  and  it  is  to  the  Government 
that  the  individual  person  must  look  for  the  maintenance 
of  his  rights.  Yet  government  can  exist  only  under  the 
condition  of  being  able  to  levy  and  collect  taxes.  It  is  only 
by  the  revenues  derived  from  taxation  that  the  State  is 


WHAT  CONGRESS  CAN   DO  105 

able  to  pay  its  officers  and  meet  all  its  other  necessary  ex- 
penses. The  power  to  tax,  therefore,  belongs  to  the  State 
as  a  quality  without  which  the  State  cannot  exist;  and  the 
amount  of  taxes  it  may  levy  is  limited  only  by  the  State's 
own  estimate  of  needed  revenue. 

Topics. — Purpose  of  taxation. — Power  to  tax  fundamentally 
necessary  for  a  State. 

References. — Ford,  American  Citizen's  Manual,  Part  II.,  137- 
149;  Hart,  Actual  Government,  381-407;  Lalor,  Cyclopcedia,  iii, 
618;  i,  712. 

51.  Classes  of  Taxes. — There  are  two  general  classes  of 
taxes.  These  are  direct  taxes  and  indirect  taxes.  Direct 
taxes  are  those  which  are  demanded  from  the  persons  who 
are  expected  to  bear  the  burden  of  their  payment.  A  poll 
tax  is  a  direct  tax.  A  tax  on  land  also  is  regarded  as  a 
direct  tax.  "  Indirect  taxes  are  those  which  are  demanded 
from  one  person  in  the  expectation  and  intention  that  he 
shall  indemnify  himself  at  the  expense  of  another."  If  a 
merchant,  for  example,  pays  duties  on  goods  imported,  he 
will  add  the  amount  of  the  duties  to  the  selling  price  of  the 
goods.  By  this  means  he  shifts  the  burden  of  the  duties 
from  himself  to  the  persons  who  buy  and  use  the  goods.  If 
an  excise  tax  is  collected  from  the  manufacturer  of  cigars, 
for  instance,  the  amount  of  this  tax  will  be  added  by  him  to 
the  price  of  the  cigars  and  will  thus  be  ultimately  paid  not 
by  the  producer,  but  by  the  consumer.  Taxes  of  this  kind 
are  indirect  taxes.  The  persons  who  advance  the  taxes  to 
the  collector  indemnify  themselves  by  receiving  an  addi- 
tional price  from  the  consumer.  Thus  the  consumer  pays 
the  tax  indirectly.  Many  persons  object  to  paying  direct 
taxes,  because  they  seem  to  be  receiving  nothing  for  their 
money;  but  the  payment  of  heavy  indirect  taxes  excites  less 
complaint,  because  the  tax  is  concealed  in  the  price  of  the 

goods  purchased. 
8 


106      THE  GOVERNMENT  OF  THE   UNITED   STATES 

There  are  two  conditions  imposed  on  Congress's  power 
of  taxation:  The  first  of  these  is  that  direct  taxes  shall  be 
apportioned  among  the  States  according  to  their  population; 
the  second  is  that  all  other  kinds  of  taxes  imposed  by  Con- 
gress "shall  be  uniform  throughout  the  United  States." 

There  has  been  much  discussion  as  to  what  taxes,  within 
the  meaning  of  the  Constitution,  are  direct  taxes.  The 
more  restricted  view  embraces  only  capitation  taxes  and 
taxes  on  real  estate.  Justice  Miller,  in  his  lectures  on  the 
Constitution,  presents  this  view.  Some  decisions  by  mem- 
bers of  the  Supreme  Court  add  to  these  two  items  taxes  on 
personal  property.  Indirect  taxes  are  of  two  classes:  One 
class  embraces  indirect  taxes  levied  usually  on  articles  pro- 
duced in  the  country  where  the  tax  is  collected.  This  is 
an  excise  tax.  The  indirect  taxes  of  the  other  class  are 
such  as  are  levied  on  goods,  produced  abroad,  when  they 
are  brought  into  the  country.  Indirect  taxes  of  this  second 
class  are  called  customs  duties.  Both  excise  taxes  and  cus- 
toms duties  are  thus  indirect  taxes,  and  are  both  levied  and 
collected  by  the  Federal  Government.  The  first  are  taxes 
for  internal  revenue;  the  second  are  taxes  on  imports. 

Topics. — Direct  and  indirect  taxes. — Conditions  imposed  on 
Congress's  power  of  taxation. — Definition  of  direct  taxes.— In- 
stances of  indirect  taxes. 

References.— Hinsdale,  American  Government,  195-198;  Miller, 
Lectures,  236-239. 

52.  Equality  and  Uniformity  of  Taxation.— Many  of 
the  State  constitutions  require  that  taxation  shall  be  equal 
and  uniform  ;  but  the  Federal  Constitution  requires  simply 
that  all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States.  Equality  of  taxation,  in  the  sense  of 
an  apportionment  of  the  burden  "  so  that  each  person  shall 
feel  neither  more  nor  less  inconvenience  from  his  share  of  the 
payment  than  every  other  person  experiences  from  his," 


WHAT  CONGRESS  CAN  DO  107 

is  unattainable;  it  is,  however,  an  ideal  that  legislators  may 
well  keep  in  mind  in  devising  systems  of  taxation.  "  Equal- 
ity of  contribution  is  not  enjoined  in  the  Bill  of  Rights,  and 
probably  because  it  was  know^n  to  be  impracticable." 
Uniformity  of  taxation  may  be  secured  when  taxes  are  im- 
posed by  general  laws  that  apply  in  all  parts  of  the  territory 
under  the  jurisdiction  of  the  body  levying  the  taxes.  All 
persons  in  paying  the  taxes  imposed  may  not  make  e(|ual 
sacrifices;  but  the  system,  whatever  it  is,  applies  uniformly 
and  without  exception  throughout  the  region  for  which  it 
was  formed. 

The  taxes  which  the  Constitution  provides  "shall  Ijc 
uniform  throughout  the  United  States"  "are  not  required 
to  be  uniform  as  between  the  different  articles  that  are 
taxed,  but  uniform  as  between  the  different  places  and 
different  States.  Whisky,  for  instance,  shall  be  taxed  no 
higher  in  the  State  of  Illinois  or  Kentucky,  where  much  of 
that  article  is  produced,  than  it  is  in  Pennsylvania.  The 
tax  must  be  uniform  on  the  particular  article;  and  it  is 
uniform,  within  the  meaning  of  the  constitutional  require- 
ment, if  it  is  made  to  bear  the  same  percentage  over  all  the 
United  States." 

Topics. — Equal  and  uniform  taxes. — Meaning  of  phrase,  "shall 
be  uniform  tliroughout  the  United  States." 
References.— Miller,  Lectures,  239-242. 

53.  Taxation  of  Governmental  Means. — An  important 
limitation  of  the  taxing  power  is  found  in  the  principle  that 
all  subjects  over  which  the  power  of  a  State  extends  are 
objects  of  taxation,  and  that  those  over  which  it  does  not 
extend  are  exempt  from  taxation.  In  carrying  out  this 
principle  it  has  been  decided  that  the  State  governments 
cannot  lay  a  tax  upon  the  constitutional  means  employed 
by  the  Government  of  the  Union  to  execute  its  constitu- 
tional powers.    A  bank  created  by  the  United  States  as  its 


108      THE   GOVERNMENT   OF  THE  UNITED  STATES 

fiscal  agent,  or  the  revenue  stamps  or  treasury  notes  issued 
by  the  United  States,  or  the  bonds  or  other  securities  issued 
by  the  United  States,  or  the  salaries  of  Federal  officers  are 
not  subject  to  taxation  by  the  States.  On  the  other  hand, 
the  United  States  cannot  tax  a  railroad  owned  by  a  State, 
or  the  process  of  the  State  courts,  or  the  salary  of  a  State 
officer,  or  a  State  or  municipal  corporation.  These  rules 
rest  on  the  principle  that  the  Federal  Government  and  the 
State  governments  must  be  left  unobstructed  by  extraneous 
legislation  in  carrying  out  their  legitimate  operations;  but 
the  power  of  either  to  tax  the  constitutional  means  of  the 
other  involves  the  power  to  destroy  these  means,  and  "  the 
power  to  destroy  may  defeat  and  render  useless  the  power 
to  create."  "There  is,"  therefore,  "a  plain  repugnance  in 
conferring  on  one  government  a  power  to  control  the  con- 
stitutional measures  of  another."  Any  other  rule  would 
permit  one  government  to  tax  all  the  means  employed  by 
another  government  "  to  an  excess  that  would  defeat  all  the 
ends  of  government." 

Topics. — Governmental   means   exempt    from    taxation. — In- 
stances.— Basis  of  this  rule. 

References. — Cooley,  Constitutional  Law,  60-62. 

54.  Purposes  of  Taxes. — That  clause  in  the  Constitution 
conferring  the  power  to  levy  and  collect  taxes  specifies  the 
purposes  for  which  the  revenue  derived  from  taxes  may  be 
used.  It  may  be  used  "  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States," 
but  its  use  for  merely  private  ends  is  not  authorized.  A  tax 
on  imports,  that  has  no  other  purpose  than  to  raise  the  price 
of  an  article  so  that  a  manufacturer  of  it  in  the  country 
may  receive  a  larger  profit,  would  not  appear,  when  con- 
sidered from  this  point  of  view,  to  be  supported  by  the 
Constitution.  When,  however,  a  tax  on  imports  is  levied  for 
revenue  which  is  designed  to  be  used  for  public  purposes, 


WHAT  CONGRESS  CAN  DO  109 

its  validity  is  not  impeached  by  the  fact  that  it  causes  a 
rise  in  the  price  of  the  article  produced  in  the  country,  and 
thus  enables  the  manufacturer  to  make  a  larger  profit.  The 
part  of  the  revenue  which  is  paid  for  salaries  is  a  source  of 
private. advantage  to  the  employees  of  the  Government; 
but  it  is  expended  for  a  public  purpose,  inasmuch  as  the 
service  which  is  thus  secured  is  presumed  to  contribute  to 
the  general  welfare.  This  principle  is  applicable  also  to 
the  payment  of  pensions.  Some  public  advantage  must  be 
assigned  to  justify  the  imposition  of  a  tax  or  the  expenditure 
of  any  part  of  the  revenues  collected.  "There  can  be  no 
lawful  tax  which  is  not  laid  for  some  public  purpose";  but 
the  power  to  determine  what  is  a  public  purpose  belongs  to 
the  Legislature,  and  a  court  will  intervene  to  declare  a  tax 
void  only  when  the  absence  of  all  possible  public  interest 
in  the  purposes  for  which  the  funds  are  raised  is  "so  clear 
and  palpable  as  to  be  perceptible  by  any  mind  at  first  blush." 
"  All  cases  of  doubt  must  be  solved  in  favor  of  the  validity 
of  legislative  action." 

Topics. — Purposes  of  Federal  taxes. — Protective  duties. — Sal- 
aries and  pensions. — Criterion  of  lawful  tax. 

References. — Cooloy,  Constitutional  Law,  57-60. 

55.  Federal  Taxes. — As  already  stated,  the  Federal  Gov- 
ernment relies  chiefly  on  indirect  taxes,  while  the  State 
governments  draw  their  revenues  mainly  from  direct  taxes; 
but  direct  taxes  may  be  laid  by  the  Federal  Government. 
When  this  is  done  it  is  provided  by  the  Constitution  that 
they  shall  be  apportioned  among  the  States  in  proportion 
to  the  population  represented  in  the  lower  house  of  Congress. 
It  is  expressly  provided  that  "no  capitation  or  other  direct 
tax  shall  be  laid"  except  in  this  manner.  When  direct 
taxes  were  laid  by  the  Federal  Government  in  1798,  1813, 
1815,  and  1816,  they  were  laid  on  lands,  improvements, 
dwelling-houses,  and  slaves;    in  1801,  they  were  laid  only 


110      THE   GOVERNMENT   OF  THE  UNITED  STATES 

on  lands,  improvements,  and  dwelling-houses.  Whenever 
the  Government  has  imposed  a  tax  which  is  recognized  as 
a  direct  tax,  it  has  never  been  applied  to  any  objects  but 
real  estate  and  slaves;  but  a  tax  laid  on  carriages  kept  for 
use  is  not  a  direct  tax;  nor  is  a  tax  on  the  circulation  of 
banks,  or  an  execution  tax,  or  an  excise  tax  to  be  regarded 
as  a  direct  tax.* 

The  chief  sources  of  revenue  for  the  Federal  Govern- 
ment are  customs  duties  and  excise  taxes,  or  taxes  on  the 
production  of  commodities.  Duties  on  imports  are  collected 
by  all  civilized  nations,  but  the  different  nations  pursue 
widely  different  policies  with  respect  to  the  number  of  arti- 
cles taxed  and  the  rates  of  taxation.  There  are  two  gen- 
eral theories  under  which  duties  are  imposed  on  imports. 
One  is  that  by  imposing  a  duty  on  articles  which  are  brought 
into  the  country  the  Government  secures  a  revenue  and,  at 
the  same  time,  increases  the  price  of  the  imported  articles 
so  that  manufacturers  can  produce  similar  articles  with 
larger  profits  in  the  country  thus  protected;  and  the  larger 
profits  thus  made  possible  will,  it  is  expected,  stimulate  the 
growth  of  industries.  Under  this  theory  a  special  effort  is 
made  to  tax  the  importation  of  those  wares  that  are  or  may 
be  produced  in  the  country  imposing  the  tax.  The  other 
theory  is  that  import  duties  should  be  laid  in  such  a  way  as 
to  secure  a  revenue  without  increasing  the  price  of  the 
articles  produced  in  the  country,  or  creating  an  artificial 
stimulus  in  the  production  of  any  special  class  of  articles. 
This  theory,  therefore,  provides  for  import  duties  principally 
on  articles  produced  only  abroad.  The  purpose  of  the  tax 
in  the  one  case  is  revenue  and  protection  to  home  industries. 
The  purpose  of  the  tax  in  the  other  case  is  revenue  without 
special  regard  to  protection.  The  revenue  from  excise 
taxes   or   taxes   on   domestic   manufactures   can   be   more 

^  Hylton  vs.  United  States,  3  Dallas,  171;  Pacific  Insurance  Co.  vs. 
Soule,  8  Wallace,  433;  Veazie  Bank  vs.  Fenno,  8  Wallace,  53. 


WHAT   CONGRESS  CAN  DO  111 

readily  varied  than  those  derived  from  customs  duties;  and 
for  this  reason  changes  in  the  excise  taxes  are  often  made 
when  the  emcrgenc}^  requires  an  increase  or  diminution  of 
the  income  of  the  Federal  Government.  In  case  of  a  sudden 
demand  for  an  increased  expenditure  to  meet  the  extraor- 
dinary expenses  of  a  war,  funds  for  this  purpose  are  readily 
collected  by  the  extension  of  the  system  of  excise  taxation. 

Topics. — Indirect  taxes. — Direct  taxes. — Chief  sources  of  Fed- 
eral revenue. — Two  theories  for  imposing  customs  duties. — The  best 
taxes  for  emergency  revenue. 

References. — Bryce,  American  CommonweaWi,  i,  171-179; 
Hart,  Actual  Government,  394-40G;  Willoughby,  RUjhts  and  Duties, 
273. 

56.  Payment  of  Debts. — When  the  Constitution  was 
adopted,  thus  changing  the  form  of  government,  a  question 
naturally  arose  concerning  the  debts  contracted  by  the  Gov- 
ernment under  the  Articles  of  Confederation.  If  the  obli- 
gations of  the  old  Government  were  not  assumed  by  the 
new  Government,  a  strong  opposition  to  the  change  was 
inevitable.  If,  moreover,  a  State  had  rejected  the  Con- 
stitution, it  might  have  claimed  to  be  released  from  any 
part  of  the  o1)ligations  of  the  central  Government.  To  set 
aside  any  doubts  that  might  arise  on  these  points,  the  makers 
of  the  Constitution  declared  that  "all  debts  contracted  and 
engagements  entered  into  before  the  adoption  of  the  Con- 
stitution, shall  be  as  valid  against  the  United  States  under 
this  Constitution  as  under  the  Confederation. "^  When  the 
nation  came  out  of  the  Civil  War  under  the  burden  of  an 
enormous  debt,  it  again  gave  positive  assurance  of  its  good 
faith  and  its  determination  to  meet  all  legal  obligations  that 
rested  on  it.  In  tlie  fourteenth  amendment  to  the  .Con- 
stitution it  declared,  "The  validity  of  the  public  debt  of 
the  United  States,  authorized  by  law,  including  debts  in- 

Constitution,  Art.  VI. 


112      THE   GOVERNMENT   OF  THE   UNITED   STATES 

ciirred  for  payments  of  pensions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be  ques- 
tioned. But  neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave;  but  all  such 
debts,  obligations,  and  claims  shall  be  held  illegal  and  void." 
This  declaration  was  not  necessary;  but  it  emphasized  the 
principle  that  lawful  debts  should  be  paid;  or  that  obliga- 
tions entered  into  by  a  part  of  the  nation  in  rebellion  con- 
stituted, in  case  of  defeat,  no  proper  claim  on  the  Govern- 
ment against  which  the  rebellion  had  been  undertaken.  It 
was  a  pledge  of  good  faith  made  in  the  most  solemn  man- 
ner possible  and  by  the  highest  authority  in  the  land. 
This  declaration  did,  however,  reaffirm  the  principle  that 
the  incidental  losses  of  war  do  not  constitute  a  claim  on 
the  victorious  party. 

Topics. — Debts  contracted  under  Articles  of  Confederation. — 
Constitutional  declaration. — Civil  War  debts. — Fourteenth  amend- 
ment. 

References. — Lalor,  Cyclopccdia,  i,  725-734;  Hart,  Actual 
Government,  423-429. 

57.  Borrowing  Money. — Congress  can  borrow  money. 
The  need  of  this  provision  is  to  enable  the  Government 
to  meet  extraordinary  expenditures.  Under  ordinary  cir- 
cumstances, during  times  of  peace,  the  Government  is  ex- 
pected to  meet  its  current  expenses  with  the  revenues 
derived  from  the  regular  system  of  taxation;  but  in  under- 
taking a  war,  or  great  public  works,  it  is  necessary  to  have 
a  very  large  amount  of  money  for  use  during  a  short  period. 
It  is  thought  that  the  war  carried  on,  or  the  harbor  con- 
structed, or  the  canal  dug  will  confer  a  benefit  which  the 
nation  will  enjoy  for  several  generations;  and  it  therefore 
appears  just  not  to  collect  by  taxation  the  whole  fund  for 


WHAT  CONGRESS  CAN   DO  113 

the  undertaking  in  the  time  required  to  wage  the  war  or 
to  complete  tlie  works  in  question. 

Of  course  every  generation  has  its  own  immediate  work 
to  be  performed  wherein  posterity  is  the  chief  beneficiary; 
but  there  are  some  great  undertakings,  hive  the  Civil  War, 
or  the  constructing  of  the  Panama  Canal,  which  may  be  ex- 
pected to  occur  only  once  in  the  nation's  lifetime,  and  in 
the  benefits  of  which  all  subsequent  generations  will  par- 
ticipate. The  payments  needed  to  carry  on  such  an  under- 
taking should  be  extended  over  many  years.  In  order  to 
do  this,  the  Government  borrows  money  and  repays  it 
within  such  a  period  as  may  seem  expedient  in  view  of  the 
resources  of  the  nation. 

In  borrowing'  money  the  Government  issues  bonds. 
These  bonds  are  notes  promising  to  pay  to  the  holder  the 
sum  named  in  the  bond  itself,  together  with  interest  at  a 
fixed  rate.  The  bonds  are  then  sold;  and  the  purchaser,  in 
effect,  loans  to  the  Government  the  amount  stated  in  the 
bond  or  bonds  purchased. 

Topics. — The  need  of  borrow^ng. — The  justification  of  borrow- 
ing.— The  method. — Use  of  bonds. 

References. — Hinsdale,  American  Government,  199;  Hart, 
Actual  Government,  412,  42G,  429. 

58.  Regulation  of  Commerce. — Congress  can  regulate 
commerce.  Under  the  Articles  of  Confederation  the  power 
to  regulate  commerce  was  vested  in  the  several  States.  This 
gave  certain  States  an  advantage  over  others  in  matters  of 
trade  and  made  it  practically  impossible  to  secure  uniform 
regulations  for  all  parts  of  the  country.  From  this  con- 
dition arose  jealousy  and  local  antagonisms  which  impressed 
upon  the  people  the  need  of  a  closer  union  of  the  States  and 
the  establishment  of  a  central  organization  endowed  with 
power  to  regulate  foreign  trade  and  trade  among  the  States. 
When,  therefore,  the  Constitution  was  adopted,  Congress 


114      THE   GOVERNMENT   OF  THE   UNITED  STATES 

was  given  power  "  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian 
tribes."  The  word  commerce,  as  here  used,  "describes  the 
commercial  intercourse  between  nations  and  parts  of  nations 
in  all  its  branches,  and  is  regulated  by  prescribing  rules  for 
carrying  on  this  intercourse."  ^ 

Navigation  is  included  in  the  meaning  of  the  term  com- 
merce and,  under  this  provision,  when  not  confined  within 
the  limits  of  a  single  State,  is  subject  to  regulation  by  Con- 
gress. This  provision  comprehends  all  commercial  inter- 
course, however  carried  on,  whether  over  railroads,  bridges, 
or  ferries,  or  by  boats  on  rivers  or  along  the  coast,  or  by 
any  other  means  which  may  be  brought  into  use,  when- 
ever this  intercourse  leads  beyond  the  limits  of  any  State. 
Whatever  devices  for  carrying  on  commercial  intercourse 
the  inventive  genius  of  man  may  create  in  the  future  will 
be  covered  by  the  powers  granted  in  this  provision. 

"The  powers  thus  granted  are  not  confined  to  the 
instrumentalities  of  commerce  or  the  postal  service  known 
or  in  use  when  the  Constitution  was  adopted;  but  they  keep 
pace  with  the  progress  of  the  country  and  adapt  themselves 
to  the  new  developments  of  time  and  circumstance.  They 
extend  from  the  horse  with  its  rider  to  the  stage  coach, 
from  the  sailing  vessel  to  the  steamboat,  from  the  coach 
and  steamboat  to  the  railroad,  and  from  the  railroad  to  the 
telegraph,  as  these  new  agencies  are  successively  brought 
into  use  to  meet  the  demands  of  increasing  population  and 
wealth."  2 

The  principal  agency  employed  by  the  Federal  Govern- 
ment in  regulating  trade  among  the  States  is  the  Inter- 
state Commerce  Commission.  It  consists  of  five  members, 
appointed    by    the    President.     It    has    power   to    require 

*  Gibbons  vs.  Ogden,  9  Wheaton,  1. 

2  Pensacola  Telegraph  Company  vs.  Western  Union  Telegraph  Com- 
pany, 96  United  States,  9. 


WPIAT  CONGRESS  CAN   DO  115 

reports  from  railroads  on  their  operations;  it  may  hear 
complaints,  carry  on  investigations,  and  compel  attendance 
of  witnesses.  The  decisions  of  the  courts  are  gradually  de- 
fining the  powers  of  the  Interstate  Commerce  Commission 
and  making  it  an  effective  agent  of  the  Federal  Government 
in  regulating  commerce  among  the  States. 

But  all  buying  and  selling,  all  trade  within  the  limits 
of  any  State,  and  all  commercial  intercourse  between  persons 
at  different  points  within  a  State,  however  carried  on,  is 
under  the  control  of  the  State  government  and  is  not  covered 
by  Federal  legislation. 

The  power  to  regulate  commerce  "with  the  Indian 
tribes"  is  not  invalidated  or  limited  by  the  fact  that  the 
tribe  resides  within  the  limits  of  a  State.  For  "  the  treaties 
and  laws  of  the  United  States  contemplate  the  Indian 
territory  as  completely  separated  from  that  of  the  States; 
and  provide  that  all  intercourse  with  them  shall  be  carried 
on  exclusively  by  the  Government  of  the  Union."  ^  Neither 
a  State  nor  an  individual  person  has  the  right  to  purchase 
lands  from  the  Indians;  this  right  belongs  exclusively  to 
Congress. 

Topics. — Regulation  of  rommoroo. — groaning  of  commerce  in 
tliis  connection. — Extent  of  State  control. — Regulation  of  com- 
merce with  Indian  tribes. 

References. — Ford,  American  Citizen's  Manual,  Part  II,  33-39; 
Hart,  Actual  Government,  446-459;  Hinsdale,  American  Government, 
211-215;  Miller,  Lectures,  433-473. 

59.  Prohibition  of  Commerce. — Congress  can  prohibit 
commerce.  The  power  to  regulate  commerce  involves  the 
power  to  prohibit  it.  An  instance  of  prohibition  is  seen 
in  the  Embargo  Act  of  1807.^  This  act  provided  that  "an 
embargo   be   laid  on  all  ships   and   vessels   in   the    ports 

'  Worcester  T'S.  Georgia,  G  Peters,  557. 

2  McLaughlin,  History  of  the  American  Nation,  273-275. 


116      THE   GOVERNMENT   OF  THE  UNITED   STATES 

and  places  within  the  limits  or  jurisdiction  of  the  United 
States,  cleared  or  not  cleared,  bound  to  any  foreign  port  or 
place;  and  that  no  clearance  be  furnished  to  any  ship  or 
vessel  bound  to  such  foreign  port  or  place  except  vessels 
under  the  immediate  direction  of  the  President  of  the 
United  States." 

The  purpose  of  this  act  was  to  prevent  trade  between 
the  United  States  and  other  countries.  Other  nations  have 
sometimes  attempted  in  a  similar  manner  to  cut  off  all 
commercial  intercourse  with  foreign  nations.  During  the 
period  between  the  early  part  of  the  seventeenth  century 
and  the  middle  of  the  nineteenth,  the  Japanese  government 
prohibited  all  trade  with  other  countries  and  prevented  all 
immigration  and  emigration.  The  prohibition  in  the  United 
States  lasted  only  a  comparatively  short  time.  When  the 
law  was  passed,  no  definite  time  was  fixed  for  its  contin- 
uance in  force;  but  after  two  years  it  was  repealed,  in  1809. 

The  Embargo  Act  affected  disastrously  all  shipping, 
and  thus  bore  more  heavily  on  New  England  than  on  any 
other  part  of  the  country.  It  threw  the  carrying  trade 
largely  into  the  hands  of  British  merchants.  The  exports 
from  the  United  States  declined,  in  ISOS,  by  four-fifths  of 
their  value,  that  is  to  say,  from  $110,000,000  to  $22,000,000. 
The  opposition  to  the  act  was  taken  up  by  the  New  England 
State  courts.  They  declared  it  unconstitutional,  on  the 
ground  that  it  annihilated  commerce,  while  Congress  was 
empowered  by  the  Constitution  to  regulate  it.  The  State 
legislatures  of  New  England  took  a  position  not  unlike  that 
assumed  in  the  Kentucky  and  Virginia  resolutions,  and 
assumed  the  right  to  protect  their  citizens  against  this  op- 
pressive act  of  Congress.  The  State  courts  were  hostile  to 
it,  and  the  Federal  courts  in  New  England  seldom  found 
juries  who  would  convict  for  violating  it.  The  Federalists 
went  so  far  in  their  hostility  as  to  declare  in  the  United 
States  Senate  that  the  people  were  not  bound  to  submit  to 


r 


WHAT  CONGRESS  CAN  DO  117 

it,  and  that  war  would  follow  a  persistent  attempt  to  enforce 
it.  This  view  was  confirmed  by  John  Quincy  Adams,  who 
reported  that,  if  the  Government  should  attempt  to  use 
force,  the  New  England  States  would  temporarily  or  per- 
manently withdraw  from  the  Union. 

Topics. — Prohibition  of  commerce. — Embargo  Act,  1807. — 
Japan's  policy  of  non-intercourse. — Opposition  to  the  embargo. 

References. — Cooley,  Constitutional  Law,  68;  Channing,  Stu- 
dents' History  of  the  United  States,  350;  McLaughlin,  History  of  the 
American  Nation,  274. 

6o.  Citizens  and  Citizenship. — Congress  can  pass  laws 
relating  to  citizenship  and  naturalization.  In  the  ordinary 
sense  of  the  term  a  citizen  is  an  individual  person  who  owes 
allegiance  to  a  state  and  who  has  the  right  to  demand 
protection  from  that  state.  Such  a  person  may  or  may  not 
possess  political  rights.  Sometimes,  however,  only  such 
persons  as  possess  political  rights  are  called  citizens.  Prop- 
erly, each  of  these  two  classes  of  persons,  namely,  those  who 
have  political  rights  and  those  who  do  not  have  political 
rights,  should  have  an  independent  designation.  They 
might  perhaps  be  called  passive  citizens  and  active  citizens; 
for  the  members  of  one  class  are  passive  under  the  protection 
of  the  government,  while  the  members  of  the  other  class 
participate  actively  to  a  greater  or  less  extent  in  the  con- 
duct of  the  government  itself.  Any  person  who  was  one 
of  the  people  of  any  one  of  the  States  when  the  Constitution 
was  adopted  became,  i])so  facto,  a  citizen.  Additions  to  this 
number  have  been  made  and  may  still  be  made  in  two  ways: 
first,  by  birth;  second,  by  naturalization. 

1.  Citizens  by  birth  are  persons  who  arc  born  in  the 
United  States  and  who  continue  to  live  under  its  jurisdiction 
till  they  are  of  age. 

2.  Citizens  by  naturalization  arc  persons  who  were  born 
subject  to  the  jurisdiction  of  a  foreign  power,  and  who  have 


118      THE   GOVERNMENT   OF  THE   UNITED   STATES 

had  conferred  upon  them  the  essential  rights,  privileges, 
and  prerogatives  of  citizens  born  in  the  country  of  their  new 
residence. 

Congress  has  power  to  naturalize  aliens,  which  means 
that  Congress  has  power  to  receive  an  alien  into  the  condi- 
tion of  a  citizen,  and  to  invest  him  with  the  rights  and  privi- 
leges of  a  natural  citizen.  Each  sovereign  state  in  confer- 
ring citizenship  establishes  the  terms  under  which  this  status 
is  held  by  the  person  receiving  it.  If  a  person  in  whose 
native  country  it  is  maintained  that  citizenship  is  inalien- 
able, is  naturalized  in  the  United  States,  there  arises  at  once 
a  conflict  of  authorities.  This  conflict  has  often  arisen  be- 
tween the  United  States  and  other  nations.  Formerly  Eng- 
lish judges  insisted  that  no  English  subject  could  lay  aside 
his  obligation  of  allegiance  except  by  the  consent  of  the  Eng- 
lish Government.  The  President  of  the  United  States  has, 
however,  held  that  naturalization  in  the  United  States  re- 
leases the  person  naturalized  from  all  allegiance  to  his  na- 
tive country.  The  practical  opposition  of  these  views  has 
been  manifest  on  several  occasions.  In  the  War  of  1812 
Englishmen,  naturalized  in  the  United  States,  who  were 
taken  in  arms  against  England  were  regarded  as  traitors. 
Irishmen,  naturalized  in  the  United  States,  have  often  shown 
their  hostility  to  England  and  have  been  tried  in  England 
as  if  they  were  still  subjects  of  Great  Britain.  The  repre- 
sentatives of  the  United  States  have,  in  these  cases,  insisted 
that  they  were  unable  to  distinguish  between  naturalized 
and  native  citizens,  but,  at  the  same  time,  have  acted  under 
instructions  not  to  interfere  in  behalf  of  persons  who  had 
become  naturalized  and  had  practically  abandoned  their 
new  citizenship,  while,  at  the  same  time,  relying  on  it  to 
protect  them  in  the  prosecution  of  treasonable  designs 
against  the  government  of  thijir  native  country.  The  views 
represented  by  England  and  the  United  States  appeared 
to  be  irreconcilable.    Then,  in  1868,  Congress  declared  that 


WHAT  CONGRESS  CAN   DO  119 

"expatriation  is  a  natural  and  inherent  right  of  all  peo- 
ple, indispensable  to  the  enjoyment  of  the  rights  of  life,  lib- 
erty, and  the  pursuit  of  happiness";  and  pronounced  the 
denial,  restriction,  impairment,  or  questioning  of  the  right 
of  expatriation  by  an  officer  of  the  United  States  to  be  in- 
consistent with  the  fundamental  principles  of  the  Republic. 
The  view  here  expressed  has  been  accepted  by  other  civil- 
ized nations.  In  treaties  between  the  United  States  and 
a  number  of  European  nations,  including  Austria,  Great 
Britain,  the  German  Empire,  Belgium,  Norway  and  Sweden, 
and  Denmark,  it  is  maintained: 

1.  That  naturalization  in  accordance  with  the  laws  of 
the  adopted  country,  after  a  residence  of  five  years,  shall 
free  the  naturalized  person  from  his  native  allegiance. 

2.  That  the  simple  declaration  of  intent  to  become  a 
citizen  shall  not  have  the  effect  of  naturalization. 

3.  That  a  renewal  of  domicile  in  the  mother  country 
with  the  intent  not  to  return  shall  work  a  renewal  of  the 
former  allegiance;  and  two  years'  residence  is  presumptive 
evidence  of  such  intent. 

At  least  two  years  before  a  person  may  be  naturahzed, 
he  is  required  to  declare  on  oath  that  he  wishes  to  become 
a  citizen  of  the  United  States.  At  the  same  time  he  is 
required  to  renounce  allegiance  to  any  foreign  sovereign, 
and  to  declare  that  he  will  support  the  Federal  Constitution. 
When  finally  he  presents  himself  for  admission  to  citizenship, 
the  court  admitting  him  must  have  satisfactory  evidence 
that  he  has  resided  five  years  in  the  United  States  and  one 
year  in  the  State  or  Territory  where  the  court  is  held;  and 
that  he  has  maintained  during  his  residence  the  proper 
conduct  of  a  citizen.  What  change  of  status  has  been  made 
by  the  process  of  naturalization  may  be  discovered  by  con- 
sidering that  as  an  alien  he  remained  in  the  country  only 
by  sufferance;  and  that,  while  many  of  the  States  permitted 
him  to  hold  and  to  convey  real  estate,  he  had  no  political 


120      THE   GOVERNMENT   OF  THE   UNITED  STATES 

rights.  After  his  natiirahzation,  however,  he  became  en- 
titled to  all  the  rights  and  privileges  which  any  citizen  of 
the  country  enjoys.  Moreover,  as  a  citizen  of  a  State,  he 
is  "entitled  to  all  the  privileges  and  immunities  of  citizens 
of  the  several  States."  Among  the  privileges  and  immuni- 
ties of  State  citizenship  are  protection  by  the  government, 
the  enjoyment  of  hfe  and  liberty,  the  right  to  acquire  and 
possess  property  of  every  kind,  the  right  to  pursue  and 
obtain  happiness  and  safety.  The  citizen  of  a  State  is 
nevertheless  subject  to  such  restraints  as  the  government 
may  prescribe  for  the  general  good.  The  citizen  of  a  State 
also  enjoys  the  right  to  pass  through  or  to  reside  in  any 
other  State.  He  may  claim  the  benefit  of  the  writ  of 
habeas  corpus;  he  may  institute  and  maintain  actions  of 
every  kind  in  the  courts  of  the  State;  and  he  may  take, 
hold,  and  dispose  of  property. 

Besides  citizenship  in  a  State,  to  which  reference  has  just 
been  made,  there  is  also  citizenship  in  the  Union.  Both 
may  be  enjoyed  by  the  same  person.  As  a  citizen  of  a  State 
and  at  the  same  time  of  the  United  States,  one  may  claim 
protection  from  both  the  State  and  the  Federal  govern- 
ments, and  in  return  one  owes  allegiance  to  the  two  gov- 
ernments. The  citizen  of  the  United  States  is  at  the  same 
time  a  citizen  of  a  State.  Residents  in  the  Territories  or 
in  other  places  exclusively  under  the  jurisdiction  of  the 
United  States  are  merely  citizens  of  the  Union.  They  owe 
no  allegiance  to  any  State,  and  they  look  only  to  the  United 
States  for  protection. 

The  following  cases  are  special  cases  under  the  law  of 
citizenship  and  naturalization: 

1.  Children  of  citizens,  although  born  abroad,  shall  be 
considered  citizens. 

2.  Children  of  naturalized  persons,  if  less  than  twenty- 
one  years  old  when  their  parents  are  naturalized,  shall  be 
considered  citizens  if  they  reside  in  the  United  States. 


WHAT  CONGRESS  CAN   DO  121 

3.  Minors  coming  into  the  United  States  and  residing 
here  three  years  before  becoming  twenty-one  years  old  may 
be  considered  citizens,  without  previous  declaration,  after 
a  residence  of  five  years. 

4.  A  woman  who  might  be  naturalized,  marrying  a 
citizen,  shall  be  considered  a  citizen. 

5.  If  an  alien  who  has  declared  his  intention  to  become 
a  citizen  dies  before  he  has  been  fully  naturalized,  his  widow 
and  children  shall  be  considered  citizens  on  taking  the  oath. 

6.  Soldiers  at  least  twenty-one  years  old,  honorably 
discharged  from  the  army  of  the  United  States,  may  become 
citizens  after  one  year's  residence,  without  declaration  of 
intention. 

7.  Sailors  having  served  three  years  on  a  United  States 
ship  may  be  regarded  as  citizens,  after  making  a  declara- 
tion. 

8.  Five  consecutive  years  of  service  in  the  navy  of  the 
United  States  admits  to  citizenship  without  previous  decla- 
ration of  intention. 

Topics. — Definition  of  citizen. — Definition  of  political  rights. — 
Two  meanings  of  the  term  "citizen,"  as  generally  used. — Conflict 
of  laws  supposed  to  affect  a  naturalized  citizen. — Attitude  of  the 
United  States  shown  in  treaties. — Process  of  naturalization. — Privi- 
leges and  immunities  of  a  naturalized  citizen. — Citizen  in  a  State 
and  in  the  United  States. — Special  cases,  under  law,  of  citizenship 
and  naturalization. 

References. — Ford,  American  Citizen's  Manual,  Part  U,  39-44; 
Hinsdale,  American  Government,  215-217;  Miller,  Lectures,  275,  276. 

6i.  Bankruptcy. — At  the  time  of  the  formation  of  the 
Constitution  the  general  subject  of  bankruptcy  in  English 
law  embraced  both  bankruptcy  and  insolvency.  The  former 
applied  to  traders,  the  latter  to  persons  imprisoned  for  debt, 
but  asking  for  a  discharge  from  prison  upon  surrender  of  all 
their  property.  Since  1840  this  distinction  has  not  pre- 
9 


122      THE   GOVERNMENT  OF  THE   UNITED   STATES 

vailed  in  the  United  States,  except  that  a  person  who  is 
unable  to  pay  his  debts  is  termed  insolvent  and,  when  his 
inability  is  declared  by  the  proper  law  officer,  is  called  a 
bankrupt.  Congress  can  establish  "uniform  laws  on  the 
subject  of  bankruptcy  throughout  the  United  States";  but, 
when  no  such  uniform  laws  exist,  the  States  are  at  liberty 
to  pass  bankruptcy  laws  applicable  within  their  limits. 
Under  a  general  bankruptcy  law,  residents  of  the  States 
may  receive  the  benefit  of  the  exemption  laws  of  the  States 
in  which  they  reside.  The  first  United  States  bankrupt  law 
was  in  force  from  June  2,  1800,  to  December  19,  1803;  the 
second,  from  February  1,  1842,  to  March  3,  1843;  the  third, 
from  June  1,  1867,  to  September  1,  1878;  the  fourth  was 
enacted  in  1898.  Under  the  bankrupt  law  a  person  is 
relieved  from  legal  obligations;  but  there  are  certain  moral 
obligations  that  ought  still  to  bind  him.  Bankrupts  have 
sometimes  regarded  the  abolition  of  legal  obligations  as 
carrying  also  the  abolition  of  moral  obligations,  and  this 
has  often  led  society  to  pronounce  against  them.  In  some 
countries  bankrupts  not  only  lose  credit  but  also  social 
position,  and  the  only  way  for  them  to  achieve  social  re- 
habilitation is  to  redeem  their  outstanding  promises. 

Topics. — Bankruptcy  and  insolvency. — General  bankruptcy 
laws. — State  laws  to  obtain  when  no  general  law. — Position  of 
debtor  under  bankruj^t  law. 

References. — Hmsdale,  American  Govcrnmcjit,  217,  218;  Lalor, 
Cyclopccdia,  i,  223. 

62.  Coining  Money. — Congress  can  coin  money.  It  can 
thus  provide  for  a  uniform  currency  for  the  whole  country. 
In  exercising  this  power  to  coin  money  the  Government 
determines  the  amount  and  kinds  of  metal  that  shall  con- 
stitute the  different  coins,  and  stamps  pieces  of  metal  with 
words  and  figures  which  indicate  the  names  and  weight  of 
the  several  pieces.     While  the  denomination  of  the  coin  is 


WHAT  CONGRESS  CAN   DO  123 

fixed  by  the  Government,  its  value,  that  is  to  say,  its  power 
to  purchase,  is  fixed  by  the  operations  of  the  market.  This 
is  particularly  true  of  the  standard  coin.  A  token  coin, 
such  as  the  half-dollar,  is  worth  half  as  much  as  a  gold 
dollar,  although  the  silver  in  it  is  worth,  as  bullion,  less  than 
half  as  much  as  the  gold  in  a  gold  dollar.  The  coin  is  worth 
half  of  a  dollar  because  the  law  requires  that  two  of  these 
shall  be  exchangeable  with  the  gold  dollar.  Usually  the 
amount  of  the  token  money  that  may  be  given  at  any  one 
time  in  the  payment  of  a  debt  is  limited  by  law.  The 
token  coin,  then,  differs  from  the  standard  coin  in  that  the 
bullion  of  which  it  is  composed  is  worth  less  than  the 
amount  indicated  on  the  face  of  the  coin. 

Although  the  real  value  of  a  coin  is  fixed  in  the  market, 
yet  the  Government  may  fix  the  amount  of  metal  which  it 
shall  contain  and  by  so  doing  cause  its  market  value  to  vary. 
In  dealing  with  foreign  coins,  moreover,  the  Government 
may  establish  the  ratio  which  such  coins  shall  hold  to  the 
domestic  coins;  that  is  to  say,  at  what  rate  the  foreign  coins 
shall  be  received  at  the  custom  house  or  in  payment  for 
public  lands. 

Topics. — The  right  to  coin  money  affected  by  the  Constitution. 
— Part  played  by  Governiiunit  in  coining. — Government  and  foreign 
coins. — Value  of  coins. 

References.— Ford,  American  Citizen's  Manual,  Part  II,  172- 
184;  Hart,  Actual  Government,  49G;  Hinsdale,  American  Govern- 
ment, 202-211,  218,  219;  Lalor,  Cyclopa-dia,  i,  507. 

63.  Treasury  Notes. — In  the  time  of  the  Civil  War,  when 
the  Government  was  greatly  in  need  of  money  to  meet  its 
enormous  expenses,  Congress  authorized  the  use  of  treasury 
notes  in  the  payment  of  debts  contracted  by  the  Govern- 
ment. These  notes  were  issued  in  great  numbers  and  con- 
stituted the  bulk  of  the  money  in  circulation  in  the  United 
States  for  several  years.     An  act  was  also  passed  by  Con- 


124      THE  GOVERNMENT   OF  THE   UNITED   STATES 

gress  making  these  notes  legal  tender.  Owing,  perhaps,  to 
the  fact  that  there  was  no  clause  in  the  Constitution  which 
seemed  to  furnish  specific  authority  for  this  action,  the 
question  of  its  constitutionality  was  several  times  brought 
to  the  attention  of  the  Supreme  Court;  and  it  was  finally 
decided  by  that  body  "  that  the  impressing  upon  the  treasury 
notes  of  the  United  States  the  quality  of  ^  being  a  legal 
tender  in  payment  of  private  debts  is  an  appropriate  means, 
conducive  and  plainly  adapted  to  the  execution  of  the 
undoubted  powers  of  Congress,  consistent  with  the  letter 
and  si^irit  of  the  Constitution,  and  therefore,  within  the 
meaning  of  that  instrument,  '  necessary  and  proper  for  the 
carrying  into  execution  the  jjowers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States.'" 

Money  is  said  to  be  a  legal  tender  when  the  law  authorizes 
it  to  be  tendered  in  payment  of  debts.  In  authorizing  the 
issue  of  money  that  is  to  constitute  a  part  of  the  lawful 
circulating  medium  of  the  country,  Congress  declares  it 
to  be  lawful  money  and  a  legal  tender.  When  paper  money 
was  issued  by  the  Government  during  the  Civil  War,  Con- 
gress declared  that  the  "  United  States  notes  shall  be  lawful 
money,  and  a  legal  tender  in  payment  of  all  debts,  public 
and  private,  within  the  United  States,  except  for  duties 
on  imports  and  interest  on  the  public  debt."  Essentially 
the  same  legal  declaration  is  made  with  respect  to  the  gold 
and  silver  money  of  the  United  States.  Any  money  that 
has  thus  been  made  by  law  a  legal  tender  may  be  offered  in 
payment  of  debts;  and  the  creditor  has  no  right  to  refuse 
it  and  demand  another  kind  of  money,  unless  it  has  been 
especially  provided  in  a  contract  with  him  that  he  shall  be 
paid  in  some  specified  kind  of  money  or  the  issue  of  some 
specified  date. 

Topics. — Treasury  notes  authorized  by  Congress. — Question  of 
constitutionality  of  the  act. — Decision  of  the  Supreme  Court. — Defi- 
nition of  legal  tender. 


WHAT  CONGRESS  CAN   DO  125 

References. — Hart,  Actual  Government,  497-499;  Hinsdale, 
American  Government,  199-202;  Lalor,  Cyclopcedia,  i,  222  ;  iii,  960, 

64.  Counterfeiting. — In  order  to  render  effective  and 
exclusive  the  authority  of  the  Federal  Government  to  coin 
money,  Congress  is  empowered  "to  provide  for  the  punish- 
ment of  counterfeiting  the  securities  and  current  coin  of  the 
United  States."  Under  this  power,  Congress  has  declared 
that  any  person,  not  authorized  by  law,  who  shall  make  or 
cause  to  be  made,  or  shall  attempt  to  issue  or  pass  any  coins 
of  gold  or  silver,  whether  in  the  semblance  of  the  coins  of  the 
United  States  or  of  foreign  countries,  shall  be  punished  by 
fine  not  exceeding  $5,000  and  by  imprisonment  for  a  term 
not  exceeding  ten  years.  For  counterfeiting  the  minor  coins 
the  fine  shall  not  exceed  SI, 000,  and  the  imprisonment  shall 
not  exceed  three  years.  This  prohibition  applies  also  to  the 
counterfeiting  of  paper  money  that  has  been  issued  by  the 
Government. 

Topics. — Definition  of  counterfeiting. — Prohibition  by  Congress. 
References. — Hinsdale,  American  Governm.ent,  219,  220. 

65.  Post  Offices  and  Post  Roads. — Congress  can  "  estab- 
lish post  offices  and  post  roads."  Any  route  within  a  State, 
whether  on  land  or  water,  over  which  mails  are  transported 
under  the  law  of  Congress  or  b}'  order  of  the  Post-Office  De- 
partment, is  a  post  road.  Was  it  intended  that  the  power  here 
conveyed  should  be  limited  to  designating  routes  over  which 
the  mails  should  be  carried?  Judge  Cooley  has  answered 
this  question  with  the  statement  that  "  the  power  to  establish 
post  offices  includes  everything  essential  to  a  complete  postal 
system  under  Federal  control  and  management,  and  the 
power  to  protect  the  same  by  providing  for  the  punishment, 
as  crimes,  of  such  acts  as  would  tend  to  embarrass  or  defeat 
the  purposes  had  in  view  in  their  establishment."  ^ 

^  Cooloy,  Contititufiojial  Law,  S3. 


126      THE   GOVERNMENT   OF  THE   UNITED   STATES 

Topics. — Describe  the  business  of  the  post  office. — Definition 
of  a  post  road. — Extent  of  power  of  Congress  in  this  matter. 

References. — Ford,  American  Citizen's  Mamml,  Part  II,  44-48; 
Hinsdale,  American  Governmcyit,  221,222;  Lalor,  CyclopcBclia,  iii, 
310. 


66.  Copyrights  and  Patents. — In  case  a  porson  has  in- 
vented a  new  machine  for  which  there  is  a  demand,  or  written 
a  boolv  that  may  be  sold,  he  has  created  a  kind  of  property 
that  does  not  consist  wholly  in  the  materials  of  which  the 
machine  or  the  book  is  made.  The  ideas  and  literary  form 
of  the  book  are  results  of  his  labor  and  make  it  valuable. 
They  are  his  property.  The  new  application  of  mechanical 
principles  and  the  peculiar  combination  of  the  parts  of  a 
machine — in  a  word,  the  ideas  involved  in  the  machine — give 
it  its  special  value.  After  the  machine  has  been  made,  or 
the  book  has  been  written  and  published,  it  may  be  very 
easily  copied;  and  thus  the  inventor  or  the  writer  may  be 
deprived  of  the  product  of  his  labor.  In  order,  therefore, 
to  enable  the  writer  and  the  inventor  to  hold  undisturbed 
possession  of  the  products  of  their  labors.  Congress  is  em- 
powered to  secure  "  for  limited  times,  to  authors  and  inven- 
tors, the  exclusive  right  to  their  respective  writings  and 
discoveries."  A  copyright  is  obtained  by  sending  to  the 
Librarian  of  Congress  the  title  and,  within  two  weeks  from 
the  date  of  issue,  two  copies  of  the  publication  in  question. 
A  fee  of  $1  is  paid  for  securing  a  copyright;  A  renewal  is 
obtained  in  the  same  manner,  but  application  must  be  made 
within  six  months  before  the  expiration  of  tlie  first  term. 
To  obtain  a  patent,  application  must  bo  made  to  the  Com- 
missioner of  Patents,  in  accordance  with  the  prescribed 
form.  This  application  is  accompanied  by  a  description 
of  the  invention.  A  fee  of  $15  is  required  on  filing  the 
apjolication  and  a  fee  of  $20  is  required  on  the  issue  of  the 
patent. 


WHAT  CONGRESS  CAN   DO  127 

Topics. — .Definition  of  copyright. — Compare  copyright  with 
patent. — Object  of  copyriglit  and  i:)atent. — Process  of  securing  copy- 
right and  patent. 

References. — Hinsdale,  American  Government,  222-225;  Lalor, 
Cydopccdia,  iii,  123. 

67.  Courts  Inferior  to  the  Supreme  Court. — Congress  can 
establish  Federal  courts.  It  was  clearly  impossible  for  the 
makers  of  the  Constitution  to  foresee,  and  provide  for,  every 
case  where  a  Federal  court  might  be  needed  sometime  in 
the  future.  They  were  able,  however,  to  see  that  one  great 
central  supreme  court  would  always  be  required,  and  such  a 
court  they  established  directly  by  a  provision  of  the  Con- 
stitution. The  language  of  this  clause  is:  "The  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish."  In  order  to  carry  out 
this  plan.  Congress  was  given  the  authority  to  establish  such 
inferior  Federal  courts  as  in  its  judgment  might  be  needed. 

Though  the  Supreme  Court  was  called  into  existence  by 
a  direct  provision  of  the  Constitution,  it  devolved  upon 
Congress  to  fix  the  number  of  judges  and  to  increase  or 
diminish  their  number.  This  would  render  it  possible  for 
the  President  and  Congress  ultimately  to  make  their  own 
will  prevail,  if  they  wished  to  go  to  the  disgraceful  length  of 
increasing  the  number  of  judgeships,  and  of  filling  them  with 
partisans  pledged  to  support  the  views  of  the  President  and 
Congress  in  a  conflict  between  them  and  the  court. 

Topics. — Difference  between  Federal  and  State  courts. — ^Vhy 
power  to  establish  inferior  Federal  courts  was  given  to  Congress. 

References. — Bryce,  American  Commonwealth,  \,  22o-23G; 
Hart,  Actual  Government,  301-304. 

68.  Piracy. — Congress  can  "define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offenses  against 


128      THE   GOVERNMENT   OF  THE  UNITED   STATES 

the  law  of  nations."  Piracy  is  robbery  or  depredation  on 
the  high  seas.  By  the  term  "high  seas"  is  meant  all  tide- 
water below  low-water  mark.  "  Piracy  is  the  same  offense 
on  sea  that  robbery  is  on  land";  but  it  is  more  likely  to  be 
committed  by  associations  than  are  most  forms  of  robbery 
on  land.  Pirates  may  be  called  the  brigands  of  the  sea. 
Their  field  is  usually  outside  of  the  dominion  of  any  nation — 
that  is  to  say,  on  the  sea  more  than  three  miles  from  any 
shore.  They  carry  the  flag  of  no  nation,  and  no  nation 
protects  them.  They  are  public  enemies  and  are  amenable 
to  the  tribunals  of  their  captors.  Laws  enacted  by  any 
nation  to  suppress  them  are  directed  against  a  common 
enemy  and  are  in  the  interest  of  all  civilized  nations.  Any 
state  may  proceed  against  pirates,  although  their  depreda- 
tions may  have  been  confined  to  the  vessels  or  commerce 
of  other  states.  Robbery  committed  on  a  ship  belonging 
to  the  subjects  of  a  foreign  state  by  a  person  not  a  citizen 
of  the  United  States  is  a  crime  against  such  foreign  state, 
and  is  not  punishable  in  the  courts  of  the  United  States. 

Topics. — Definition  of  piracy.— Difference  between  piracy  and 
robbery  on  land.— Usual  field  of  pirates'  operations.— Where  pirates 
may  be  tried. 

References. — Hinsdale,  American  Government,  225;  Lalor, 
Cydopccdia,  iii,  199. 

69.  War. — Congress  can  declare  war.  When  two  nations 
have  antagonistic  purposes  that  cannot  be  reconciled  by 
peaceable  negotiation,  there  appears  to  be  no  alternative 
but  a  resort  to  force.  Such  a  resort  to  force  may  mean 
that  an  attempt  has  been  made  to  reach  an  agreement  by 
mutual  persuasion  or  compromise,  and  that  the  efforts  have 
been  fruitless;  or  it  may  mean  an  act  of  pure  aggression,  in 
which  no  attempt  has  been  made  to  harmonize  conflicting 
purposes.  In  either  case  there  is  no  common  superior  who 
can  make  a  decision  by  wliich  the  two  nations  must  abide. 


WHAT  CONGRESS  CAN   DO  129 

There  appears,  therefore,  nothing  else  for  them  to  do  but  to 
settle  their  differences,  as  their  savage  ancestors  settled 
theirs,  by  a  conflict  in  which  each  party  gathers  up  all  the 
force  that  seems  to  be  necessary  to  crush  his  antagonist. 

The  power  to  declare  when  war  shall  be  used  to  this  end 
by  the  United  States  has  been  committed  to  Congress;  but 
war  may  exist  between  the  United  States  and  another 
nation  prior  to  any  congressional  declaration  on  the  matter. 
In  1812  Congress  enacted  "that  war  be  and  the  same  is 
hereby  declared  to  exist  between  the  United  Kingdom  of 
Great  Britain  and  Ireland  and  the  dependencies  thereof 
and  the  United  States  of  America  and  their  Territories." 
In  1S4G  it  was  affirmed  in  the  preamble  of  an  act  of  Congress 
that  "by  the  act  of  the  Republic  of  Mexico  a  state  of  war 
exists  between  that  government  and  the  United  States." 
On  the  twenty-fourth  of  April,  1898,  it  was  enacted  "  that 
war  be  and  the  same  is  hereby  declared  to  exist,  and  that  war 
has  existed  since  the  twenty-first  day  of  April  between  the 
United  States  and  Spain."  In  none  of  these  cases  did  the 
declaration  of  Congress  precede  the  beginning  of  hostilities. 

After  the  Treaty  of  Paris,  by  which  the  Philippine  Islands 
passed  under  the  sovereignty  of  the  United  States,  a  part 
of  the  inhabitants  rose  in  rebellion  against  the  authority  of 
the  United  States.  For  the  purpose  of  suppressing  this 
rebellion  large  bodies  of  troops  were  transported  to  those 
islands.  This  was  done  under  the  orders  of  the  President 
without  any  special  authorization  or  declaration  by  Con- 
gress. The  insurgents  or  persons  in  rebellion  were  never 
recognized  as  belligerents  by  any  other  nation,  and  Congress 
never  declared  war  against  them.  Furthermore,  in  1900, 
when  the  American  minister  at  Pekin  and  other  American 
citizens  in  China  were  the  objects  of  a  general  attack  in  the 
Boxer  outbreak,  several  regiments  were  sent  to  China  with 
a  view  of  protecting  the  lives  of  Americans  and  American 
interests.     These  cooperated  with  the  allied  forces  sent  by 


130      THE   GOVERNMENT   OF  THE   UNITED   STATES 

Japan,  Germany,  France,  Russia,  and  England;  but  the 
participation  of  the  United  States  in  this  undertaking  was 
simpl}^  by  direction  of  the  President.  Congress  made  no 
declaration  in  the  matter  and  issued  no  special  authoriza- 
tion for  carrying  on  the  war.  It  would  thus  appear  that 
although  Congress  is  empowered  to  declare  war,  most  of  the 
wars  carried  on  by  the  United  States  have  been  begun  with- 
out a  congressional  declaration. 

Topics. — Meaning  of  declaration  of  war. — By  whom  made. — 
War  without  declaration. — Instances.— Rebellion  in  the  Philippine 
Islands. — Expedition  to  Pekin,  1900. 

References. — Ford,  American  Citizc7i's  Manual,  Part  II,  21- 
29;  Hart,  Actual  Government,  474-477;  Hinsdale,  American  Govern- 
ment, 226. 

70.  Letters  of  Marque. — Congress  can  grant  letters  of 
marcpie.  It  sometimes  happens  that  members  of  one  nation 
suffer  an  injury  at  the  hands  of  members  of  another  nation, 
for  which  they  are  not  able  to  obtain  redress  either  from  the 
persons  inflicting  the  injury  or  from  the  government  claim- 
ing jurisdiction  over  such  persons.  In  cases  like  this,  or  in 
war  where  persons  concerned  have  no  private  grievances, 
governments  have,  in  some  instances,  authorized  private 
persons  to  go  upon  the  high  seas  to  take  the  persons  or  prop- 
erty of  the  enemy  or  of  the  members  of  that  nation  from 
which  the  injury  has  proceeded.  The  authorization  in  such 
a  case  is  conveyed  in  a  commission  called  a  letter  of  marcjue. 
These  undertakings  are  known  as  privateering  and  have  been 
recognized  by  international  law.  Before  some  of  the  nations 
had  established  permanent  public  navies,  this  practice  was 
useful,  as  private  war  on  land  was  useful  before  a  national 
army  or  a  public  police  force  was  organized.  With  the 
growth  of  more  reasonable  international  relations  there  has 
been  manifested  a  disposition  to  abolish  privateering,  so 
tliat  the  power  of  Congress  to  grant  letters  of  marque  is  a 


WHAT  CONGRESS  CAN   DO  131 

power  of  diminishing  importance.  The  first  article  of  the 
Declaration  of  Paris,  1856,  affirms  that  "privateering  is  and 
remains  abolished."  Most  of  the  leading  civilized  nations 
have  accepted  this  declaration;  that  is,  they  will  not  engage 
in  privateering.  The  signatory  powers  were  Great  Britain, 
France,  Russia,  Austria,  Sardinia,  Prussia,  and  Turkey. 
Spain,  Mexico,  and  the  United  States  agreed  in  rejecting  the 
rule  abandoning  the  practice  of  privateering.^ 

Topics. — Definition  of  letter  of  marciue. — Privateering. — Dec- 
laration of  Paris,  1856,  on  privateering. 

References. — Lalor,  Cydopcedia,  iii,  301. 

71.  The  Army. — Congress  can  raise  and  support  armies. 
The  fact  that  armies  are  organized  under  the  principle  of 
absolutism  has  led  modern  liberal  states  to  be  jealous 
of  military  authority.  This  jealousy,  has,  moreover,  been 
strengthened  by  the  history,  in  other  nations,  of  military  en- 
croachments on  the  civil  authority.  The  existing  Govern- 
ment has  not  the  military  weakness  of  the  Government  under 
the  Articles  of  Confederation,  and  it  keeps  the  army  subject 
to  legislative  authority.  No  appropriation  of  money  for  the 
support  of  the  army  shall  be  for  a  term  longer  than  two  years. 

^  The  plenipotentiaries  who  signed  the  Treaty  of  Paris,  1856,  as- 
sembled in  congress  at  Paris  "  adopted  the  following  solemn  declara- 
tion": 

1.  Privateering  is  and  remains  abolished ;  2.  The  neutral  flag  covers 
enemy's  goods,  with  the  exception  of  contraband  of  war;  3.  Neutral 
goods,  with  the  exception  of  contraband  of  war,  are  not  liable  to  capture 
under  enemy's  flag;  4.  Blockades,  in  order  to  be  binding,  must  be 
effective — that  is  to  say,  maintained  by  a  force  sufficient  really  to 
prevent  access  to  the  coast  of  the  enemy. 

The  Congress  of  Paris,  here  referred  to,  was  a  meeting  of  represen- 
tatives of  the  powers  that  had  been  involved  in  the  Crimean  War,  and 
the  Treaty  of  Paris,  signed  March  30,  185G,  closed  that  war.  About 
two  weeks  after  signing  the  treaty  the  members  of  the  congress,  seeing 
the  need  of  rules  to  control  the  shipping  of  goods  in  time  of  war,  signed 
this  declaration,  which  has  become  a  part  of  international  law. 


132      THE   GOVERNMENT   OF  THE   UNITED   STATES 


In  case,  therefore,  the  Executive  should  wish  to  maintain 
a  larger  army  than  should  seem  desirable  to  Congress,  this 
body  might  make  its  will  effective  by  withholding  funds 
needful  for  the  army's  support. 

By  an  act  of  Congress  approved  April  22,  1898,  the 
military  forces  of  the  United  States  are  declared  to  consist 
of  all  able-bodied  men  between  eighteen  and  forty-five  j^ears 
of  age.  This  means  that  all  citizens  embraced  in  this  de- 
scription are  liable  to  military  service  in  case  they  are  needed 
to  defend  the  interests  of  the  nation  or  to  carry  out  the 
purposes  of  the  Government.  The  regular  army,  however,  is 
only  a  very  small  part  of  this  number.  After  the  Civil  War 
it  was  reduced  to  27,000  men.  In  1898  it  was  increased  to 
60,000;  and  in  1899,  to  65,000,  with  a  temporary  volunteer 
force  of  35,000.  In  1901  it  was  provided  that  the  number 
of  enlisted  men  should  not  exceed  100,000;  and  that  there 
should  be  one  lieutenant  general,  six  major  generals,  fifteen 
brigadier  generals,  and  such  other  officers  as  are  demanded 
for  the  proper  organization  of  the  army.^ 

'  The  officers  of  the  army  and  navy  are  appointed  by  the  President, 
These  officers  are  as  follows: 


Army 
General 

Lieutenant  general 
Major  general 
Brigadier  general 
Colonel 

Lieutenant  colonel 
Major 
Captain 

First  lieutenant 
Second  lieutenant 


Navy 
Admiral 
Vice  admiral 
Rear  admiral 

Captain 

Commander 

Lieutenant  commander 

Lieutenant 

Lieutenant,  junior  grade 

Ensign 


The  office  of  general,  superior  to  that  of  major  general,  was 
created  for  Washington  by  Congress,  March  3,  1799.  After  his  death 
it  remained  vacant  until  1802,  when  it  was  abolished.  It  was  revived 
for  General  Grant  in  1866,  and  three  years  later  it  was  conferred  on 
W.  T.  Sherman.  It  was  allowed  to  lapse  on  Sherman's  retirement  in 
1883,  but  was  revived  again  for  Sheridan.     On  Sheridan's  death  it  was 


WHAT  CONGRESS  CAN   DO  133 

Topics. — Organization  of  armies. — Appropriations  for  support 
of  army. — Military  forces  of  the  United  States. — Regular  army. — 
Officers  of  the  army. 

References. — Hart,  Actual  Govermnerd,  462-466;  Hinsdale, 
American  Government,  221  \  Lalor,  Cyclopedia,  hi,  1016. 

again  dropped.  At  present  the  highest  officer  in  the  army  is  known  as 
the  chief  of  staff. 

,In  the  United  States  navy  the  office  of  admiral  was  created  in 
186G  for  Farragut.  At  the  death  of  Admiral  Porter  in  1891,  the  titles 
of  vice  admiral  and  admiral  were  abolished.  The  title  of  admiral  was, 
however,  recreated  in  1899  and  conferred  upon  George  Dewey. 

Instruction  preparatory  to  entrance  into  the  army  as  second  lieu- 
tenant or  into  the  navy  as  ensign  is  furnished  by  the  Military  Acad- 
emy at  West  Point  or  the  Naval  Academy  at  Annapolis.  The  body 
of  cadets  at  the  Military  Academy  consists  of  one  from  each  con- 
gressional district,  one  from  each  Territory,  one  from  the  District  of 
Columbia,  and  ten  from  the  United  States  at  large.  The  cadets  are 
appointed  by  the  President,  and  when  appointed  must  be  between 
seventeen  and  twenty-two  years  of  age.  With  the  exception  of  the 
ten  at  large,  they  must  reside  in  the  State,  Territory,  or  district  for 
which  they  are  severally  appointed.  The  cadets  are  paid  by  the 
Federal  Government,  but  "no  cadet  shall  receive  more  than  at  the  rate 
of  $540  a  year,"  They  are  organized  into  four  companies,  and  each 
company  is  commanded  by  an  officer  of  the  army.  After  a  cadet  has 
completed  the  required  studies  of  the  classes  he  may  be  commissioned 
as  a  second  lieutenant.  In  case  of  vacancies  the  President  may  appoint 
persons  not  graduates  of  the  Military  Academy  to  be  second  lieutenants. 

At  the  Naval  Academy  the  students  are  called  naval  cadets.  The 
number  is  one  for  each  member  or  delegate  of  the  House  of  Representa- 
tives, one  for  the  District  of  Columbia,  and  ten  appointed  at  large. 
The  naval  cadets  at  large  and  the  one  from  the  District  of  Columbia  are 
appointed  by  the  President.  Of  the  others,  each  member  and  delegate 
of  the  House  of  Representatives  nominates,  in  writing,  one  resident  of 
his  district;  and  if  no  nomination  is  made  for  any  given  district,  in  case 
of  vacancy,  within  a  specified  time,  the  Secretary  of  the  Na\y  makes 
the  appointment  without  such  nomination.  The  academic  course  for 
naval  cadets  is  six  years,  and  the  cadets  at  the  time  of  their  admission 
must  be  between  the  ages  of  fourteen  and  eighteen  years.  After 
graduation  they  may  be  appointed  to  the  lower  official  grades  in  the 
navy  or  marine  corps. 


134      THE   GOVERNMENT   OF   THE   UNITED   STATES 

72.  The  Militia. — Congress  can  call  the  militia  into 
active  service.  The  militia  is  a  military  force  organized  by 
the  several  States,  and  consists  of  such  persons  in  the  States 
as  are  liable  to  military  duty.  The  officers  are  appointed 
by  the  States.  The  force  is  primarily  subject  to  the  order 
of  the  governor  of  the  State  in  which  it  is  organized,  and 
may  be  used  in  suppressing  local  riots  or  other  disturbances 
of  the  public  peace  when,  in  the  opinion  of  the  proper 
authorities,  the  regularly  constituted  police  is  unable  to  per- 
form the  task.  It  may,  however,  be  brought  into  the  serv- 
ice of  the  Federal  Government;  for  Congress  may  "provide 
for  calling  forth  the  militia,  to  execute  the  laws  of  the  Union, 
suppress  insurrections,  and  repel  invasions."  In  making 
provision  for  calling  forth  the  militia.  Congress  may  confer 
this  power  upon  the  President.  This  makes  him  the  ex- 
clusive judge  of  the  need  of  making  the  call  and  renders 
anyone  refusing  to  obey  the  call,  w4ien  made,  liable  to  punish- 
ment under  military  law.  Congress  may  also  "  provide  for 
organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  States  respec- 
tively the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  by 
Congress."  Although  the  militia  is  organized  by  the  States, 
and  the  officers  are  appointed  by  the  same  authority,  yet, 
having  been  called  into  the  service  of  the  United  States, 
this  branch  of  the  army  is  subject  to  the  orders  of  the  Presi- 
dent as  commander  in  chief,  as  well  as  to  the  orders  of  any 
officer  of  the  regular  army  ranking  the  officers  of  the  militia 
who  may  be  placed  in  command.  By  these  provisions  it 
is  made  clear  that  the  Federal  Government  is  supreme  in 
everything  relating  to  war.  This  fact  is  further  emphasized 
by  the  constitutional  provision  that  no  State  shall  enter 
into  any  treaty,  alliance,  or  confederation,  or  grant  letters 
of  marque  and  reprisal;    and  that  no  State,  without  the 


WHAT  CONGRESS  CAN  DO  135 

consent  of  Congress,  shall  keep  troops  or  ships  of  war  in  time 
of  peace,  or  enter  into  any  agreement  or  compact  with 
another  State  or  with  a  foreign  power;  or  engage  in  war 
unless  actually  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay.  This  prohibition  concerning  troops 
does  not  refer  to  the  militia,  but  to  a  standing  army.  It  is 
expected  that  the  States  will  enroll,  officer,  equip,  and  in- 
struct the  militia.  This  reference  to  treaties  and  alliances 
does  not  mean  that  Congress  may  authorize  a  State  to  form 
treaties  or  alliances  with  foreign  States;  for  such  treaties 
and  alliances  are  strictly  prohibited  by  the  Constitution, 
The  agreements  or  compacts  here  referred  to  are  such  as 
may  be  made  for  certain  temporary  purposes,  and  are  dis- 
tinct from  the  permanent  alliances  or  confederations  that 
are  involved  in  international  relations. 

In  connection  with  other  provisions  relating  to  the  militia 
may  be  read  that  contained  in  the  second  amendment  to  the 
Constitution,  which  declares  that  "a  well-regulated  militia 
being  necessary  to  a  free  State,  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed."  This  amend- 
ment appears  to  have  its  antecedent  in  the  English  Bill  of 
Rights.  The  fundamental  purpose  of  the  original  English 
declaration  was  to  secure  to  the  people  the  right  to  be 
armed  and  prepared  to  resist  the  encroachments  of  a  more  or 
less  antagonistic  crown  and  standing  army.  As  a  means  of 
popular  defense  against  the  established  authorities  of  the 
central  Government,  and  particularly  against  possible  acts 
of  injustice  by  a  standing  army,  it  recommended  itself  to  the 
jealous  inhabitants  of  the  United  States.  What  is  intended 
in  the  last  clause  of  the  amendment  is  a  general  right  of  the 
people  to  keep  arms  and  to  become  proficient  in  their  use, 
in  order  that  if  the  occasion  should  demand  it  they  might 
become  effective  members  of  a  popular  army  to  defend 
themselves  against  im-asioii.  int(M-iial  disturbance,  or  un- 
lawful oppression,  and  to  mako  unnecessary  such  a  standing 


136      THE  GOVERNMENT  OF  THE  UNITED  STATES 

army  as  might  be  dangerous  to  the  Hberties  and  the  demo- 
cratic spirit  of  the  nation. 

The  militia  has  been  called  into  the  service  of  the  national 
Government  three  times:  (1)  at  the  time  of  the  insurrection 
known  as  the  "  Whisky  Rebellion  ";  (2)  in  the  War  of  1812; 
(3)  in  the  Civil  War.  In  the  war  with  Mexico  and  in  the 
war  with  Spain  the  soldiers  that  were  added  to  the  regular 
army  from  the  several  States  were  received  as  volunteers, 
although  many  of  them  had  previously  belonged  to  the 
militia. 

Topics. — Definition  of  the  militia. — Appointment  of  the  officers. 
— For  what  purposes  used. — In  the  service  of  the  United  States. — 
Federal  supremacy  in  military  affairs. — Right  to  bear  arms. 

References. — Hart,  Actual  Government,  472-474;  Hinsdale, 
American  Government,  229,  230. 

73.  The  District  of  Columbia. — Congress  can  make  laws 
for  the  District  of  Columbia.  In  1788  Maryland  ceded  to 
the  Federal  Government  a  tract  of  land  lying  east  of  the 
Potomac,  and  in  1789  Virginia  ceded  another  tract  west  of 
the  Potomac.  These  two  tracts  made  up  the  District  of 
Columbia,  ten  miles  square.  The  latter  part  was  retroceded 
to  Virginia  in  1846,  leaving  the  area  of  the  District  as  it  is 
at  present,  about  sixty-four  square  miles.  In  the  District 
of  Columbia  the  government  is  carried  on  under  Congress. 
This  government  is  in  marked  contrast  with  that  existing 
generally  in  the  States.  With  the  exception  of  a  brief 
period,  the  District  has  always  been  governed  directly  by 
Congress;  and  thus  the  people  have  been  subject  to  a  legis- 
lative body  which  they  had  no  part  in  creating.  The  ex- 
ception refers  to  the  period  between  1871  and  1874,  when 
there  existed  a  territorial  government,  consisting  of  a  gov- 
ernor, a  secretary,  a  council  or  upper  legislative  house,  a 
board  of  health,  and  a  board  of  public  works,  appointed  by 
the  President.     There  was,  moreover,  a  house  of  delegates 


WHAT  CONGRESS  CAN   DO  137 

elected  by  the  people.  This  territorial  form  of  government 
was  set  aside  in  1874,  and  the  District  was  placed  under  a 
board  of  three  commissioners,  two  appointed  by  the  Presi- 
dent, and  the  third,  an  officer  of  the  corps  of  engineers  of 
the  army,  detailed  by  the  President.  The  subordinate 
municipal  officers  of  the  District  as  at  present  organized  are 
appointed  by  the  commissioners.  The  revenues  are  de- 
rived from  two  sources,  one-half  from  the  Federal  treasury, 
appropriated  by  Congress,  and  the  other  half  from  a  tax 
on  the  assessable  property  of  the  District. 

Topics. — Laws  for  the  District  of  Columbia. — The  land  of  the 
District. — The  government. — Period  of  territorial  form. — Revenues 
of  the  District. 

References. — Hinsdale,  American  Government,  230-232;  Hart, 
Actual  Government,  124,  334,  355-356;  Bryce,  American  Common- 
wealth, n,^  646. 

74.  Treason. — Congress  can  provide  punishment  for 
treason.  The  Constitution  has  specifically  defined  treason 
as  consisting  in  levying  war  against  the  nation  or  in  adhering 
to  its  enemies,  giving  them  aid  and  comfort.  Merely  plan- 
ning to  make  war  or  conspiring  to  overthrow  the  Govern- 
ment is  not  treason.  War  must  be  actually  undertaken. 
When  such  war  has  been  begun,  then  all  persons  who  take 
any  part  in  it,  however  small,  are  guilty  of  treason.  The 
testimony  of  two  witnesses  or  a  confession  in  open  court  is 
necessary  for  conviction  of  thisoffense.  Congress  is  author- 
ized to  declare  the  punishment  for  treason;  but  in  granting 
this  authority  the  Constitution  places  certain  limitations 
on  it:  it  provides  that  "no  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture  except  during  the  life  of  the 
person  attainted."  By  this  limitation  on  the  power  of 
Congress  to  fix  punishment  for  treason,  the  continuance  of 
the   cruel   punishments   that   had   attended   conviction   of 

treason  in  England  were  made  impossible. 
10 


138      THE   GOVERNMENT   OF  THE   UNITED   STATES 

Topics. — Definition  of  treason. — Witnesses  necessary  for  con- 
viction of  treason. — Constitutional  limitation  of  punishment  for 
treason. 

References. — Lalor,  Cxjclopcedia,  iii,  932;  Cooley,  Constitutional 
Law,  91,  287,  288;  Hart,  Actual  Government,  578. 

75.  Implied  Powers. ^Besides  being  authorized  to  do 
those  things  that  are  particularly  specified,  Congress  can 
do  all  those  other  things  that  are  necessary  to  enable  it  to 
exercise  completely  and  efficiently  the  powers  that  are 
exp-essly  conferred  upon  it.  The  powers  of  Congress  that 
are  not  particularly  specified  are  called  the  implied  powers. 
The  reason  for  the  existence  of  the  implied  powers  is  found 
in  necessity,  in  the  impossibiUty  of  making  the  Constitution 
"  contain  an  accurate  detail  of  all  the  subdivisions  of  which 
its  great  powers  will  admit,  and  of  all  the  means  by  which 
they  may  be  carried  into  execution."  1  A  constitution  is 
not  a  detailed  code,  but  is  a  general  law  which  sketches  in 
outline  the  government  created  by  it,  and  makes  clear  the 
important  objects  to  be  attained.  By  specifying  an  object 
to  be  reached,  it  is  presumed  to  authorize  whatever  means 
are  necessary  to  attain  this  object.  In  other  words,  the 
Government  is  expected  to  carry  out  the  orders  involved  in 
the  Constitution,  and  to  execute  the  powers  that  have  been 
specifically  granted  to  it;  and  "Congress  may  make  any 
law,  not  by  the  Constitution  expressly  or  impliedly  pro- 
hibited, which  it  should  deem  conducive  to  the  execution 
of  any  express  power."  2 

The  general  theory  of  implied  powers  may  be  readily 
accepted;  but  difficulty  arises  when  it  is  proposed  to  make 
a  specific  application  of  the  theory.  The  political  party 
actually  controlling  the  Government  usually  takes  a  liberal 
view  of  its  authority,  while  the  party  that  is  not  in  power  is 

*  McCulloch  vs.  State  of  Maryland,  4  Wheaton,  316. 
^  Cooley,  Constitutional  Law,  93. 


WHAT  CONGRESS  CAN   DO  139 

disposed  to  hold  to  the  strict  reading  of  the  Constitution. 
The  party  that  insists  on  construing  the  Constitution  strictly 
is  called  the  "  Strict  Construction  "  party.  There  have  been 
instances  where  Congress  has  done  things  that  would  not 
seem  to  be  authorized  by  a  strict  adherence  to  the  letter  of 
the  Constitution.  It  was  thought  that  the  laying  of  an  un- 
limited embargo  on  commerce  in  1807  was  such  an  instance. ^ 
The  purchase  of  Louisiana  in  1803  and  its  subsequent  ad- 
mission into  the  Union  were  said  to  be  acts  not  warranted 
by  any  express  grant  of  power  to  Congress.^ 

The  existence  of  implied  powers  leaves  Congress  to  de- 
cide, in  the  first  instance,  whether  it  may  or  may  not  take  a 
certain  proposed  action  under  these  powers.  Like  an  in- 
dividual person.  Congress  is  likely  to  resolve  all  reasonable 
doubts  in  its  own  favor.  This  means  that  without  external 
check  Congress  will  be  disposed  to  extend  its  power  more 
and  more — in  other  words,  to  expand  the  Federal  as  op- 
posed to  State  authority.  There  is,  however,  a  certain  check 
on  congressional  discretion.  It  remains  for  the  Supreme 
Court  to  decide  whether  any  particular  law  passed  by  Con- 
gress is  warranted  under  the  rule  of  implied  powers.  But 
the  Supreme  Court  is  a  part  of  the  Federal  Government;  and 
in  accordance  with  the  principle  under  which  Congress  is 
presumed  to  act,  it  may  be  expected  in  the  long  run  to  give 
the  Federal  instead  of  the  State  government  the  benefit 
of  such  reasonable  doubts  as  may  arise  with  respect  to 
the  limits  of  Federal  and  State  authority.  And  what  might 
be  expected  under  this  rule  has  been  realized  in  the  history 
of  the  Government  of  the  United  States  and  in  the  history  of 
all  similar  governments  that  have  reached  the  Federal  stage: 
they  have  continued  to  magnify  the  central  Government  as 
compared  with  the  provincial  or  State  governments;  they 
have  strengthened  and  tightened  the  bonds  of  union. 

'See  §59.  ^ggegsg:  1. 


140      THE   GOVERNMENT   OF   THE   UNITED   STATES 

Topics. — Definition  of  implied  powers. — Reason  for  implied 
powers. — Constitutional  provision  on  this  subject. — Attitude  of 
party  in  control  of  Government  toward  implied  powers. — "Strict 
construction  party." 

References. — Hinsdale,  American  Government,  232-235;  Lalor, 
Cyclopaedia,  i,  612. 

76.  Alien  and  Sedition  Laws. — Among  the  noteworthy 
instances  of  exercise  of  implied  powers  are  the  Alien  and 
Sedition  Laws.  The  Alien  Law  was  approved  June  25, 
1798,  and  authorized  the  President  to  order  out  of  the  coun- 
try such  aliens  as  he  should  deem  dangerous  to  the  peace 
and  safety  of  the  United  States,  or  should  have  reasonable 
grounds  to  susjicct  to  be  concerned  in  any  treasonable  or 
secret  machinations  against  the  Government.  For  disobe- 
dience to  this  order  it  imposed  severe  penalties. 

The  Sedition  Law  was  approved  July  14,  1798.  It  made 
it  a  crime  for  any  persons  unlawfully  to  combine  with  intent 
to  oppose  any  measures  of  the  Government  of  the  United 
States,  or  to  impede  the  operation  of  any  law  of  the  United 
States.  It  fixed  as  punishment  for  this  crime  a  fine  not 
exceeding  $5,000,  and  imprisonment  for  from  six  months  to 
five  years,  binding  to  good  behavior  at  the  discretion  of  the 
court.  Any  person  who  should  intimidate  an  officer  of  the 
Government  and  thus  prevent  him  from  fulfilling  the  duties 
of  his  position  was  subject  to  the  same  punishment;  also 
anyone  advising  or  attempting  to  create  a  riot,  unlawful 
assembly,  or  combination.  Any  person  who  should  print 
or  publish  any  false,  scandalous,  and  malicious  writings 
against  the  Government  of  the  United  States  was  subjected 
to  a  fine  not  exceeding  S2,000,  and  imprisonment  not  ex- 
ceeding two  years.  The  same  punishment  was  to  be  imposed 
upon  anyone  who  should  encourage  the  hostile  designs  of 
any  foreign  nation  against  the  United  States. 

The  practical  carrying  out  of  this  very  liberal  view  of  the 


WHAT  CONGRESS  CAN  DO  141 

implied  powers  was  not  allowed  to  pass  without  a  vigorous 
protest.  This  protest  found  expression  in  the  Kentueky 
and  Virginia  resolutions. 

Topics.— Alien  law,  June  25,  1798.— Sedition  law,  July  14, 
1798.— Intimidating  an  officer.— Encouraging  hostile  designs  against 
the  United  States.— Protest  in  Kentucky  and  Virginia  resolutions. 

References.— Lalor,  Cydopccdia,  i,  5G-58;  Cooley,  Constitu- 
tional Law,  94-97. 

77.  The  Kentucky  and  Virginia  Resolutions. — The  pas- 
sage of  the  Alien  and  Sedition  laws  persuaded  the  advo- 
cates of  strict  construction  that  the  rights  and  powers  of 
the  States  were  in  danger  of  undue  limitation  by  the  action 
of  the  Federal  partyin  seeking  to  magnify  the  implied  powers 
of  Congress.  To  set  aside  this  supposed  danger  and  to 
define  the  relative  powers  of  the  State  and  the  Federal 
governments  the  Kentucky  and  Virginia  resolutions  were 
passed.  The  Kentucky  resolutions  declared  that  the  Con- 
stitution was  a  compact  between  the  States  and  the  Govern- 
ment founded  by  it;  and  that  "  this  Government,  created  by 
this  compact,  was  not  made  the  exclusive  or  final  judge  of 
the  extent  of  the  powers  delegated  to  itself,  since  that  would 
have  made  its  discretion,  and  not  the  Constitution,  the 
measure  of  its  powers;  but  that,  as  in  all  other  cases  of 
compact  among  parties  having  no  common  judge,  each 
party  has  an  equal  right  to  judge  for  itself  as  well  of  infrac- 
tions as  of  the  mode  and  measure  of  redress."  The  legis- 
lature of  Virginia,  in  passing  the  Virginia  resolutions, 
asserted  its  firm  attachment  to  the  Constitution,  and  an- 
nounced a  determination  to  support  it.  At  the  same  time  it 
viewed  "  the  powers  of  the  Federal  Government  as  resulting 
from  the  compact  to  which  the  States  are  parties,  as  limited 
by  the  plain  sense  and  intention  of  the  instrument  constitut- 
ing that  compact,  as  no  further  valid  than  they  are  author- 
ized by  the  grants  enumoratc*!  in  thai  ccunpact;   and  that, 


142      THE   GOVERNMENT  OF  THE   UNITED   STATES 

in  case  of  a  deliberate,  palpable,  and  dangerous  exercise  of 
other  powers  not  granted  by  the  said  compact,  the  States 
who  are  the  parties  thereto  have  the  right  and  are  in  duty 
bound  to  interpose  for  arresting  the  progress  of  the  evil, 
and  for  maintaining  within  their  respective  limits  the 
authorities,  rights,  and  liberties  appertaining  to  them.''^ 
These  second  resolutions  declared  that  the  several  States 
were  sovereign  and  independent,  and  that  they  might  nullify 
any  acts  of  the  Federal  Government  that  were  done  in  viola- 
tion of  their  avowed  position. 

In  spite  of  this  protest,  persistently  asserted  and  em- 
phasized by  the  arguments  of  a  political  party  for  seventy 
years,  the  more  liberal  view  of  the  powers  of  Congress  has 
prevailed. 

Topics. — Occasion  of  the  Kentucky  and  Virginia  resolutions. — 
Declaration  of  Kentucky  resolutions. — Statement  of  Virginia  reso- 
lutions.— What  is  meant  by  "nullification"  in  this  connection. 

References. — Lalor,  Cydopccdia,  ii,  672. 

78.  Restrictions  on  the  Powers  of  Congress. — Any  power 
reserved  to  the  States  is  in  the  nature  of  a  restriction  on 
the  powers  of  Congress.  The  long  discussion  in  the  United 
States  as  to  the  rights  of  the  States  and  the  powers 
of  the  Federal  Government  is  evidence  of  the  difficulty  of 
drawing  a  practical  line  of  separation  between  the  sphere 
of  the  States  and  the  sphere  of  the  Federal  Government. 
There  are,  how^ever,  certain  clearly  defined  restrictions  on 
the  powers  of  Congress;  and  some  of  these  apply  generally 
to  legislative  bodies.  No  legislative  body,  for  instance, 
created  by  an  act  of  the  sovereign,  may  delegate  to  another 
department  of  the  Government  or  to  another  body  its  power 
to  make  laws.  It  appears,  however,  to  be  within  the  com- 
petence of  the  constitution-making  body  either  to  act  di- 

'  Elliott's  Debates,  iv,  528 


WHAT  CONGRESS  CAN  DO  143 

rectly  with  respect  to  any  given  subject,  or  to  leave  it  to 
be  dealt  with  through  an  act  by  the  legislative  body.  Al- 
though Congress  may  not  delegate  its  legislative  power  to 
the  President,  it  may  authorize  him  to  determine  in  what 
cases  a  particular  law  shall  apply.  In  suspending  the  writ 
of  habeas  corpus  in  the  Civil  War,  Congress  "  empowered  the 
President  to  exercise  his  judgment  and  supersede  the  w^it 
in  particular  cases,  as  he  might  deem  the  public  interest  to 
require."  ^ 

No  sovereign  can  bind  itself  for  the  future,  nor  can  a 
legislature  in  any  way  limit  its  successor.  This  means  that 
any  law  which  a  legislature  may  pass  is  subject  to  repeal 
by  any  succeeding  legislature.  All  laws  are,  therefore, 
repcalable. 

The  ninth  section  of  the  first  article  of  the  Constitution 
contains  a  number  of  specific  restrictions  on  the  powers  of 
Congress: 

1.  That  Congress  shall  not  prohibit  the  importation  of 
slaves  prior  to  the  year  1808. 

2.  That  the  privilege  of  the  writ  of  habeas  corpus"^  shall 
not  be  suspended  unless,  when  in  cases  of  rebellion  or  in- 
vasion, the  public  safety  may  require  it.^ 

3.  That  no  bill  of  attainder  or  ex  post  facto  law*  shall  be 
passed. 

4.  That  no  capitation  or  other  direct  tax^  shall  be  laid 
except  under  certain  specified  conditions. 

5.  That  no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State. 

G.  That  no  preference  shall  be  given  by  any  regulation 
of  commerce  or  revenue  to  the  ports  of  one  State  over  those 
of  another;  nor  shall  vessels  bound  to,  or  from,  one  State 
be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

*  Cooley,  Constitutional  Law,  98. 

2  See  p.  218.  '  See  §  128. 

*  See  §  126.  »  See  §  51. 


144     THE   GOVERNMENT   OF  THE   UNITED  STATES 

7.  That  no  money  shall  be  drawn  from  the  treasury,  but 
in  consequence  of  appropriations  made  by  law. 

8.  That  no  title  of  nobility  shall  be  granted  by  the  United 
States. 

These  and  other  restrictions  on  Federal  power,  contained 
in  the  amendments  to  the  Constitution,  partake  of  the  nature 
of  a  bill  of  rights  or  of  constitutional  guarantees  for  the 
protection  of  individual  citizens  or  the  States. 

Topics. — Character  of  restrictions  on  power  of  Congress. — No 
legislative  power  delegated. — Specific  restrictions  in  ninth  section 
of  first  article  of  the  Constitution. 

References. — Hinsdale,  American  Government,  236-242;  Wil- 
loughby.  Rights  and  Duties,  198-200. 

FOR  ADVANCED  STUDY 

The  Debts  of  the  Confederation,  and  State  Debts. — 

MacDonald,  Select  Documents,  46-58;  Hunt,  James  Madison, 
179,  200;  Lodge,  Hamilton,  85-96,  117-129;  Gordy,  Political 
Parties,  i,  118-128;  McMaster,  U7iited  States,  i,  567-579;  Schouler, 
United  States,  i,  130-142;  Hildreth,  United  States,  iv,  152-174,  206- 
216;  H.  von  Hoist,  United  States,  i,  83-89;  Morse,  Jefferson,  97-106. 

The  Constitutional  Doctrine  of  Implied  Powers.— Jef- 
ferson, Writings,  v,  284-289;  Hamilton,  Works,  iii,  249-251;  iv, 
104-138;  Madison,  Letters,  i,  528,  546;  Hunt,  James  Madison,  201- 
204;  MacDonald,  Select  Documents,  76-98;  Lalor,  Cyclojmdia,  i, 
199,  200;  Hildreth,  United  States,  iv,  262-267;  Marshall,  Writings, 
288-291;  Magrnchr,  John  Marshall,  172-179. 

Citizenship. — Story,  Commentaries,  §§  1103, 1104, 1693-1695, 
1805,  1806,  1928-1975;  Political  Science  Quarterly,  1:  199-205;  5: 
104-123;  H.  von  Hoist,  Constitidional  Law,  §83;  Boutwell,  Con- 
stitution, Chaps.  X,  xxn,  xxni,  xliv,  lui-lvhi,  Lxni, 

LXIV. 

The  Alien  and  Sedition  Acts. — MacDonald,  Select  Docu- 
ments, 137-148;  Gordy,  Political  Parties,  i.  Chap.  XIX;  McMaster, 
United  States,  ii,  389-403,  417-419,  424-427;  Schouler,  United 
States,  i,  392-403,  420,  421;  Lalor,  Cijclopadia,  i,  56-58. 


WHAT  CONGRESS  CAN  DO  145 

•  The  Monroe  Doctrine. — Hart,  Contemporaries,  iii,  479,  480, 
494-498,  499-501;  Gilman,  James  Monroe,  156-174;  Wharton, 
Digest,  i,  §  57;  Gordy,  Political  Parties,  ii,  4S8-49G;  Burgess,  Middle 
Period,  122-128;  Schouler,  United  States,  iii,  277-291,  292,  293. 

The  Doctrine  that  "  To  the  Victor  Belong  the  Spoils." 
— Lalor,  Cyclopa;dia,  iii,  505-569;  Morse,  Jefjerson,  215-225;  Benton, 
Thirty  Years'  View,  i,  159-162;  Roosevelt,  Benton,  79-85;  Schurz, 
Clay,  i,  332-336;  Sumner,  Jackson,  145-149;  Wilson,  Division, 
26,  27,  30-34;  Schouler,  Uiiited  States,  iii,  175,  453,  455-462. 

The  Various  Forms  of  United  States  Money. — Secre- 
tary of  the  Treasury,  Annual  Report;  Register  of  the  Treasury, 
Annual  Report;  Sumner,  American  Currency;  Hart,  Contemporaries, 
iv,  §§  168-172;  Knox,  United  States  Notes;  ^Vhite,  Money  and 
Banking. 

Congress  and  the  Income  Tax. — North  American  Review, 
160,  589-606;  Forum,  19:  48-56,  513-530,  158. 

War  Taxes. — Dewey,  Financial  History,  299-306;  Bollcs,  Fi- 
nancial History,  1861-85,  159-196  ;  Howe,  United  States  under 
Internal  Revenue  System,  50-81;  Review  of  Reviews,  xvi,  167-174, 

Implied  Powers. — Channing  and  Hart,  Guide,  333,  334. 

The  Interstate  Commerce  Commission. — Prentice  and 
Egan,  Commerce  Clause  of  the  Federal  Constitution;  Johnson,  Rail- 
way Transportation;  Reports  of  the  Commission. 


CHAPTER  VI 

THE    ORGANIZATION,    POWERS,    AND 

DUTIES    OF    THE   FEDERAL 

EXECUTIVE. 

79.  The  Form  of  the  Executive. — Many  of  the  poHtical 
ills  which  the  people  of  the  colonics  had  suffered  or  feared, 
they  had  attributed  to  the  king.  This  made  them  hesitate 
to  place  any  one  man  at  the  head  of  the  new  Government. 
Jealousy,  moreover,  made  many  persons  reluctant  to  give 
power  to  any  one  man.  In  the  Philadelphia  convention  of 
1787,  Mr.  Randolph  affirmed  that  a  single  executive  was 
opposed  by  the  people;  that  it  would  never  have  their  con- 
fidence; and  that  a  single  chief  executive  would  commonly 
come  from  the  central  part  of  the  Union,  and,  consequently, 
the  remote  parts  would  be  in  a  position  of  disadvantage. 

On  the  other  side  a  number  of  reasons  were  presented 
against  an  executive  composed  of  a  number  of  persons:  (1) 
Such  an  arrangement  would  lead  to  constant  struggles  for 
local  advantage.  (2)  The  executive  power  would  be  weak- 
ened by  its  divisions  and  animosities.  (3)  The  States  all 
had  single  executives.  (4)  A  jilural  executive  would  be  ill 
adapted  to  controlling  the  militia,  the  army,  and  the  navy. 
(5)  The  animosities  arising  from  an  executive  composed  of 
several  persons  would  not  only  interrupt  the  public  admin- 
istration, but  also  diffuse  the  spirit  of  animosity  through 
the  other  branches  of  the  Government,  through  the  States, 
and  through  the  people  at  large. 

It  is  probable  that  the  presence  of  Washington,  who  was 
146 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    147 

generally  regarded  as  eminently  fitted  to  fill  the  office,  was 
in  itself  also  a  reason  for  vesting  the  executive  authority 
in  one  man.  In  the  Constitutional  Convention  it  was  thus 
settled  early,  by  a  vote  of  eight  States  to  three,  that  this 
should  be  the  form  of  the  executive. 

Topics.— Opposition  to  single  chief  executive. — Reasons  against 
collegiate  executive. — Probable  influence  of  Washington's  presence. 
— Vote  in  Constitutional  Convention. 

References. — Bryce,  American  Commomvcnlth,  35-39;  Dawes, 
How  We  Are  Governed,  167-170,  199;  Fiske,  Civil  Government,  232; 
Hart,  Actual  Government,  259-201;  Hinsdale,  American  Govern- 
ment, 248-250;  Lalor,  Cyclojxcdia,  ii,  131;  Miller,  Lectures,  148. 

8o.  Election  of  the  President. — In  the  Constitutional 
Convention  three  methods  of  electing  the  President  were 
considered:  (1)  By  Congress;  (2)  by  a  direct  vote  of  the 
qualified  voters  of  the  whole  country;  (3)  by  a  college  of 
electors.  The  delegates  feared  that  the  first  method  would 
make  the  President  dependent  on  Congress,  and  that  the 
second  would  arouse  too  much  popular  excitement.  They 
finally  agreed  to  cause  the  President  to  be  elected  by  a  body 
of  presidential  electors.  The  electors  were  to  be  appointed 
by  the  several  States  in  such  manner  as  the  legislature  in 
each  State  might  direct.  Under  the  exercise  of  this  dis- 
cretion, different  methods  of  choosing  the  electors  have  been 
followed.  They  have  been  elected  "by  joint  ballot  of  the 
State  legislature,  by  a  concurrent  vote  of  the  two  branches 
of  the  legislature,  by  the  people  of  the  State  voting  by 
general  ticket,  and  by  the  people  voting  in  districts."  The 
voting  by  districts  would  be  likely  to  give  the  State  a  divided 
delegation  in  the  electoral  college,  while  by  anj^  one  of  the 
other  modes  all  the  electors  of  any  given  State  might  be 
expected  to  belong  to  the  dominant  political  party. 

The  Constitution  provides  that  the  number  of  electors 
from  any  State  shall  be  "equal  to  the  whole  number  of 


148      THE   GOVERNMENT   OF  THE   UNITED   STATES 

senators  and  representatives  to  which  the  State  may  be 
entitled  in  the  Congress;  but  no  senator,  or  representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector,"  In  carrying  out 
this  provision  one  elector  is  taken  from  each  congressional 
district  and  two  from  the  State  at  large.  On  a  day  pre- 
viously fixed,  "the  electors  shall  meet  in  their  respective 
States  and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President;  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit,  sealed,  to  the  seat  of  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  Presi- 
dent of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors 
appointed," 

In  case  equal  numbers  of  electors  vote  for  two  candi- 
dates, or  if  no  candidate  receives  a  majority  of  the  whole 
number  of  electors  appointed, "  then  from  the  persons  having 
the  highest  numbers,  not  exceeding  three,  on  the  fist  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose,  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote.  A 
quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President,  whenever  the 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    149 

right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  Vice-President  shall 
act  as  President,  as  in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  President."  ^ 

It  was  originally  intended  that  the  electors  should  ex- 
ercise complete  freedom  in  voting.  The  person  having  the 
greatest  number  of  votes  should  be  the  President,  provided 
the  number  of  votes  received  by  him  was  more  than  one-half 
of  the  whole  number  of  electors.  The  person  receiving  the 
next  greatest  number  below  that  given  for  the  President, 
should  be  Vice-President.  This  plan  appeared  to  the  mak- 
ers of  the  Constitution  to  be  eminently  satisfactory.  They 
thought  the  electors  would  be  the  best  citizens  of  the  sev- 
eral States,  and  that  they  would  elect  for  President  the  per- 
son approved  by  their  independent  judgment.  The  votes 
of  the  individual  electors  were  counted  for  the  person  des- 
ignated. Under  this  system  the  President  might  belong 
to  one  political  party  and  the  Vice-President  to  another 
party.  In  such  a  case  the  death  of  the  President  would 
cause  the  transfer  of  the  administration  from  one  party  to 
another,  or  from  the  majority  to  the  minority.  This  was 
not  a  prospect  to  be  regarded  with  favor  by  either  party; 
for  the  prize  won  in  a  presidential  election  was  too  important 
for  the  victorious  party  to  be  held  dependent  on  the  un- 
certainty of  a  single  human  life.  This  plan  was  set  aside 
in  practice  Very  early. 

Under  the  present  method  of  election,  party  conventions 
within  the  State  nominate  electors,  and  the  national  con- 
ventions nominate  candidates  for  the  presidency.  The 
electors,  under  this  system,  simply  furnish  a  method  of 
counting  the  vote  that  has  been  cast  for  the  persons  named 
by  the  national  conventions  of  the  two  parties.  It  is  counted 
by  States,  each  State  standing  for  a  number  equal  to  the 

'  Amendment  XII. 


150      THE   GOVERNMENT   OF   THE   UNITED   STATES 

number  of  its  electors,  or  equal  to  the  number  of  its  senators 
and  members  of  the  House  of  Representatives.     The  election 
is  held  on  the  Tuesday  after  the  first  Monday  of  November 
preceding  the  March  when  the  President  is  inaugurated. 
The  party  in  any  given  State  that  casts  the  largest  number 
of  votes  at  the  election,  however  numerous  the  minority  vote, 
has  all  the  electors  of  the  State  counted  for  its  presidential 
candidate.     Within  each  State  the  popular  vote  determines 
for  which  candidate  the  whole  number  of  electors  allotted 
to  the  State  shall  be  counted.     In  1884  the  Democratic 
party  in  New  York  had  a  majority  of  but  1,100  in  a  total 
vote  of  over  1,100,000;  and  the  thirty-six  electoral  votes  of 
the  State  were  cast  for  Mr.  Cleveland.     In  Pennsylvania, 
the  thirty  Republican  electors  were  elected  by  a  vote  of 
473,000  against  a  vote  of  392,000  for  the  Democratic  electors. 
Under  the  earlier  method  of  election,  Washington  be- 
came President  twice  by  the  unanimous  vote  of  the  electoral 
college;   and  John  Adams,  having,  after  the  vote  for  Presi- 
dent, the  greatest  number  of  votes  of  the  electors,  became 
Vice-President.     At  the  third  election,  John  Adams,  of  one 
political  party,  became  President,  and  Thomas  Jefferson,  of 
the   other  party,  became   Vice-President.     At   the   fourth 
election  Jefferson  and  Burr,  of  the  same  political  party,  had 
the  same  number  of  votes,  and  the  choice  was  made  by  the 
House  of  Representatives.     The  difficulties  attending  this 
method  of  electing  a  President  led  to  the  twelfth  amendment 
of  the  Constitution,  adopted  in  1804.     Under  this  amend- 
ment the  election  has  been  referred  to  the  House  of  Repre- 
sentatives.    This  was  in  1824,  when  Andrew  Jackson,  John 
Quincy  Adams,  William  H.  Crawford,  and  Henry  Clay  were 
candidates.     Henry  Clay's  name  could  not  be  considered 
by  the  House  of  Representatives,  since  he  received  fewer 
electoral  votes  than  any  of  the  others;    and  under  the 
twelfth  amendment  the  election  by  that  body  must  be  from 
the  three  persons  having  the  highest  numbers  of  votes.     Mr, 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    151 

Adams  received  the  votes  of  thirteen  of  the  twenty-four 
States  and  was  elected. 

Since  the  presidential  candidates  are  named  by  the 
national  conventions  before  the  voting  for  electors  begins, 
the  voters  practically  cast  their  votes  for  one  or  another 
candidate.  By  reason  of  the  method  of  counting  involved 
in  the  present  system,  it  sometimes  happens  that  the  major- 
ity of  the  electors  may  be  on  the  side  of  one  party,  while  the 
majority  of  the  popular  vote  may  be  with  the  other  party. 
This  result  naturally  provokes  criticism.  There  would, 
perhaps,  be  some  basis  for  such  criticism  if  it  had  been  de- 
signed, in  organizing  the  Government,  that  the  popular 
majority  should  dominate  in  all  cases.  But  this  does  not 
appear  to  have  been  the  purpose  of  the  framers  of  the  Con- 
stitution. Since  each  State,  however  large  or  however 
small,  sends  two  senators  to  the  Federal  Congress,  it  may 
happen  that  the  majority  in  the  Senate  will  represent  only 
a  minority  of  the  voters  in  the  nation.  But  this  is  not  a 
departure  from  the  plan  of  the  Government  as  drawn  by  its 
founders;  and  the  same  may  be  said  of  the  fact  that  the 
majority  in  the  electoral  college  is  not  of  the  same  party  as 
the  popular  majority. 

In  the  presidential  election  of  1876,  the  persons  author- 
ized to  count  the  electoral  votes  were  placed  in  a  perplexing 
position  by  receiving  from  several  of  the  States  double 
returns.  The  embarrassment  of  the  situation  was  increased 
by  the  fact  that  the  election  depended  upon  the  votes  of  these 
States.  The  laws  relating  to  elections  did  not  furnish  a 
means  of  settling  this  case;  and  with  a  Republican  Senate 
and  a  Democratic  House  of  Representatives,  the  problem 
was  full  of  difficulties.  At  this  point  Congress  intervened. 
It  passed  an  act,  approved  January  29,  1877,  which  created 
an  electoral  commission.  The  act  itself  was  made  applicable 
only  to  this  case.  Under  this  act  the  two  houses,  in  joint 
meeting,  were  to  open  the  electoral  votes  and  to  enter  upon 


152      THE   GOVERNMENT   OF  THE   UNITED  STATES 

the  journals  the  votes  to  which  no  objections  should  be 
made.  No  single  return  from  any  State,  to  which  objection 
might  be  made,  should  be  rejected  except  by  the  concurrent 
vote  of  both  houses.  The  double  or  multiple  returns  were 
disposed  of  by  the  second  section  of  the  act  already  men- 
tioned : 

"  That  if  more  than  one  return,  or  paper  purporting  to  be 
a  return,  from  a  State  shall  have  been  received  by  the 
President  of  the  Senate,  purporting  to  be  the  certificates  of 
electoral  votes  given  at  the  last  preceding  election  for  Presi- 
dent and  Vice-President  in  such  State  (unless  they  shall  be 
duplicates  of  the  same  return),  all  such  returns  and  papers 
shall  be  opened  by  him  in  the  presence  of  the  two  houses, 
when  met  as  aforesaid,  and  read  by  the  tellers,  and  all  such 
papers  and  returns  shall  thereupon  be  submitted  to  the 
judgment  and  decision,  as  to  which  is  the  true  and  lawful 
electoral  vote  of  such  State,  of  a  commission." 

They  were  referred  to  a  commission  to  decide  which  was 
the  true  and  lawful  electoral  vote  of  the  States  from  which 
two  sets  of  returns  or  certificates  had  been  received.  This 
commission  was  composed  of  fifteen  members.  Four  of 
the  associate  justices  of  the  Supreme  Court  were  named  in 
the  law  which  provided  for  the  commission,  and  these  chose 
Joseph  P.  Bradley,  a  Republican,  as  the  fifth  associate  justice. 
Besides  the  associate  justices,  there  were  five  senators  and 
five  members  of  the  House  of  Representatives,  who  were 
selected  respectively  by  the  two  houses.  From  each  of  the 
States  of  Florida,  Louisiana,  Oregon,  and  South  Carolina, 
there  were  returns  of  electoral  votes  in  favor  of  Rutherford 
B.  Hayes,  the  Republican  candidate  for  President,  and 
other  returns  of  votes  in  favor  of  Samuel  J.  Tilden,  the 
Democratic  candidate.  By  a  vote  of  eight  to  seven,  a 
strict  party  vote,  the  commission  sustained  the  validity  of 
the  votes  for  Mr.  Hayes  in  each  case,  and  he  became  Presi- 
dent. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    153 

Topics. — Method  of  electing  President  proposed. — Method 
adopted. — Number  of  electors. — Meeting  of  electors. — Procedure 
when  electors  fail  to  elect. — Oath  of  office. — Compare  old  and  new 
method. — Elections  under  the  old  method. — Elections  by  House  of 
Representatives. — Majority  of  electors  and  popular  majority. — 
The  electoral  commission  and  its  work. 

References. — Bryce,  American  Commonwealth,  ii,  lGS-193; 
Dawes,  How  We  Are  Governed,  171-184;  Fiske,  Civil  Government, 
232-240;  WsLvi,  Practical  Essays,  5S-S1',  Hart,  Actual  Government, 
261-269;  Hinsdale,  American  Government,  251-264;  Lalor,  Cyclo- 
pcedia,  ii,  50-GO;  Wilson,  Congressional  Government,  242-256. 

8i.  Qualifications  and  Compensation. — The  President  of 
the  United  States  must  be  "  a  natural  born  citizen  "  of  the 
United  States,  at  least  thirty-five  years  of  age,  and  have 
"  been  fourteen  years  a  resident  within  the  United  States." 
The  Constitution  provides  that  he  "shall  receive  for  his 
services  a  compensation  which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States  or  any  of  them."  In 
case  a  President  serves  two  terms  in  succession  he  may 
receive  an  increased  compensation  for  the  second  term,  pro- 
vided the  increase  is  made  before  the  expiration  of  the  first 
term,  even  though  he  may  have  been  reelected  before  the 
increase  is  made.  The  amount  of  this  compensation  is 
fixed  by  Congress;  and,  at  present,  it  is  $50,000  a  year, 
payable  monthly.  The  President  has,  moreover,  the  use 
of  the  executive  mansion,  its  "  furniture,  and  all  otlior 
effects  belonging  to  the  United  States."  He  is  authorized 
to  employ  in  his  oflieial  household  one  private  secretary, 
one  assistant  private  secretary,  two  executive  clerks,  one 
steward,  and  one  messenger. 

Topics. — Birth  and  age. — Compensation. — As  to  increase  of 

compensation. — Members  of  official  household  and  their  salaries. 
11 


154      THE   GOVERNMENT  OF   THE  UNITED  STATES 

References. — Dawes,  How  We  Are  Governed,  170,  171;  199- 
202;  Fiske,  Civil  Government,  241;  Hinsdale,  American  Government, 
265-269;  Miller,  Lectures,  153,  154. 

82.  The  Presidential  Term. — The  President  holds  his  of- 
fice during  a  term  of  four  years.  At  first  the  Constitu- 
tional Convention  was  in  favor  of  a  term  of  seven  years, 
without  the  privilege  of  reelection.  The  longer  period  was 
supported  by  the  idea  that  more  frequent  elections  would 
be  undesirable  on  account  of  the  social  and  economic  dis- 
turbances that  would  be  caused  by  them;  that  they  would 
be.  "hazardous  to  the  public  tranquillity."  The  popular 
agitation  that  was  greatly  feared  has,  in  fact,  offered  the 
most  effective  means  for  keeping  the  whole  body  of  the  peo- 
ple interested  and  instructed  in  the  questions  that  vitally 
concern  the  welfare  of  the  Republic.  In  a  monarchy  or  an 
aristocracy  popular  tranquillity  is  highly  desirable,  for  it 
leaves  the  monarch  or  the  limited  class  of  rulers  free  to 
carry  out  the  proper  designs  of  the  government.  But  in  a 
democratic  republic  it  is  not  enough  that  the  masses  of  the 
people  should  remain  tranquil  and  acquiesce  in  what  is  done 
by  those  temporarily  in  authority;  they  must  have  knowl- 
edge of  public  affairs,  and  this  knowledge  will  be  found  in 
the  people  only  so  long  as  it  shall  be  possible  to  maintain 
popular  interest  in  governmental  questions;  and  for  this 
purpose  nothing  has  hitherto  been  discovered  more  effective 
than  the  discussions  which  attend  a  presidential  election. 

Topics. — Term  of  office. — Arguments  in  favor  of  a  longer  term. 
— Effect  of  popular  agitation  attending  presidential  election. — 
Knowledge  of  public  affairs. 

References. — Dawes,  How  We  Are  Governed,  173-186;  Miller, 
Lectures,  \b\,  152;  YUn&daXe,  American  Government,  2bQ. 

83.  The  Vice-President. — The  Vice-President  is  elected 
in  the  same  manner  as  the  President,  except  that  if  no 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    155 

person  has  a  majority  of  the  whole  number  of  electors  ap- 
pointed, then  from  the  highest  two  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President.  It  is  to  be  noted 
that  the  election  is  from  the  two  persons  having  the  highest 
numbers  of  votes,  instead  of  from  three  persons,  as  in  the 
case  of  electing  the  President;  and  that  the  choice  is  made 
by  the  Senate  instead  of  by  the  House  of  Representatives. 
A  quorum  of  the  Senate,  for  this  purpose,  consists  of  two- 
thirds  of  the  w^hole  number  of  senators.  "But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States." 

"In  case  of  the  removal  of  the  President  from  oflice,  or 
of  his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-President;  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President;  and  such  officer  shall  act  ac- 
cordingly, until  the  disability  be  removed,  or  a  President 
shall  be  elected."  Under  this  authorization  Congress  pro- 
vided, in  1792,  that  after  the  Vice-President  the  succession 
should  go  to  the  President  pro  tempore  of  the  Senate;  and, 
in  case  there  was  no  such  president,  to  the  Speaker  of  the 
House  of  Representatives.  This  law  of  succession  was 
modified  by  the  act  of  1886,  in  which  it  was  provided  that 
after  the  Vice-President  the  succession  should  go  to  members 
of  the  Cabinet  in  the  following  order:  The  Secretary  of 
State,  the  Secretary  of  the  Treasury,  the  Secretary  of  War, 
the  Attorney  General,  the  Postmaster  General,  the  Sec- 
retary of  the  Navy,  the  Secretary  of  the  Interior.  If  the 
Vice-President  succeeds  to  the  presidency,  he  serves  as 
President  for  the  remainder  of  the  current  presidential 
term;  but  if  a  mem])er  of  the  Cabinet  becomes  President 
under  this  law,  he  will  act  only  till  a  new  President  can  be 
elected.     No  person  can  become  President  under  this  law 


156      THE   GOVERNMENT  OF  THE  UNITED   STATES 

unless  he  has  the  constitutional  qualifications  for  the  presi- 
dency. 

Topics. — Election  of  Vice-President. — Part  taken  by  the 
Senate. — Succession  of  the  Vice-President. — Succession  to  the  presi- 
dency after  the  Vice-President. — No  succession  without  constitu- 
tional qualifications. 

References. — Dawes,  How  We  Are  Governed,  179-183;  Hins- 
dale, American  Government,  257,  258. 

84.  Executive  Power. — It  was  easier  for  the  Constitu- 
tional Convention  to  determine  that  the  executive  power 
should  be  vested  in  one  man,  than  to  determine  how  much 
power  he  should  have.  Hamilton  proposed  a  strong  Execu- 
tive, who  should  hold  office  for  life,  or  until  removed  by 
impeachment.  This  view,  however,  was  not  generally 
accepted.  The  more  democratic  and  conservative  members 
of  the  convention  found  a  model  in  the  governors  of  the 
States.  They  believed  that  what  was  needed  was  a  governor 
of  the  Union;  an  officer  of  great  independence,  but  holding 
his  office  for  a  definite  term.  This  term  was  fixed  by  the 
Constitution  at  four  years.  In  providing  for  the  Executive, 
the  makers  of  the  Constitution  hoped  to  create  an  officer 
sufficiently  dignified  to  represent  worthily  the  whole  Union, 
as  the  governors  had  represented  the  States;  sufficiently 
independent  and  powerful  to  prevent  the  legislative  bodies 
from  absorbing  too  much  power,  and  at  the  same  time  so 
limited  as  not  to  threaten  the  liberties  of  the  people.  Later 
experience  indicates  that  the  President  now  wields  more 
power  than  the  majority  of  the  convention  expected  to 
confer  upon  him. 

The  powers  of  the  President  relate  to  three  classes  of 
affairs — foreign  affairs,  internal  affairs,  and  war: 

1.  In  determining  the  foreign  relations  of  the  Govern- 
ment the  President  makes  treaties  with  foreign  powers; 
and  these  treaties,  when  confirmed  by  a  vote  of  two-thirds 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    157 

of  the  senators  present,  become  authoritative  and  a  part 
of  the  law  of  the  land.  He  appoints  ambassadors,  ministers, 
consuls,  and  other  officers  representing  the  Government 
in  its  relation  to  foreign  nations.  In  these  cases  confirma- 
tion by  the  Senate  is  required,  for  which,  however,  only  a 
majority  vote  is  needed. 

2.  In  internal  affairs  the  President  appoints  the  Judges 
of  the  Supreme  Court  and  all  other  officers  of  the  United 
States  authorized  by  law,  whose  appointments  are  not 
otherwise  provided  for  by  the  Constitution.  The  power 
to  appoint  to  office  includes  the  power  to  remove  from 
office. 

The  President  may  reprieve  or  pardon  persons  convicted 
of  offenses  against  the  United  States  except  in  cases  of 
conviction  under  impeachment.  In  reprieving  a  criminal 
the  President  suspends  temporarily  a  sentence  that  has 
already  been  pronounced  by  a  lawfully  constituted  court, 
while  in  pardoning  he  relieves  the  criminal  completely  from 
the  sentence.  He  may,  on  extraordinary  occasions,  con- 
vene both  houses  of  Congress,  or  either  of  them;  "and  in 
case  of  disagreement  between  them  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time  as 
he  shall  think  proper."  But  the  President  has  never 
exercised  this  power. 

3.  Important  among  the  President's  powers  is  that 
which  he  exercises  as  "  Commander  in  Chief  of  the  Army  and 
Navy  of  the  United  States  and  of  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the  United 
States."  In  times  of  peace  there  is  little  evidence  that  the 
President's  war  power  is  especially  significant;  but  in  case 
of  war  the  vagt  power  that  is  vested  in  him  as  commander 
in  chief  of  the  arm}^  and  navy  becomes  clearly  manifest. 
Through  the  Secretary  of  War  and  the  Secretary  of  the 
Navy  his  orders  are  issued,  which  direct  the  movements  of 
those  two  powerful  arms  of  tlu^  Government.     If  adciniate 


158      THE   GOVERNMENT  OF  THE   UNITED  STATES 

funds  have  been  appropriated  for  military  or  naval  purposes, 
the  President  may  carry  on  a  war  for  subduing  an  insur- 
rection or  repelling  invasion  without  calling  upon  Congress. 
The  war  for  suppressing  the  insurrection  in  the  Philippines 
in  the  years  1899,  1900,  and  1901,  illustrates  the  great  power 
and  independence  of  the  President  under  certain  circum- 
stances in  conducting  warlike  operations.^ 

Topics. — Hamilton's  proposal  as  to  power  of  Executive. — Model 
adopted  for  presidential  office. — Three  classes  of  affairs  under  presi- 
dential power. — Extent  of  the  President's  military  power. 

References. — Bryce,  American  Commonwealth,  Chap.  V;  Dawes, 
Hoiv  We  Are  Governed,  187-191 ;  Fiske,  Civil  Government,  242 ;  Hart, 
Actual  Government,  2G9;  Lalor,  CyclopcEclia,  iii,  1064;  Miller,  Lec- 
tures, 154-156. 

85.  Making  Treaties. — In  making  treaties  the  negotia- 
tions are  undertaken  by  the  President  through  either  the 
Secretary  of  State  or  a  specially  appointed  agent.  The  spe- 
cial agent  may  be  the  minister  or  ambassador  residing  at 
the  capitol  of  the  nation  with  whom  the  treaty  is  to  be  made, 
or  any  other  person  named  as  a  commissioner  for  this  pur- 
pose. It  may  happen  that  the  Secretary  of  State  or  the 
commissioner  will  find  it  impossible  to  negotiate  a  treaty 
that  will  be  satisfactory  to  the  President.  In  this  case  the 
negotiations  will  come  to  an  end  without  practical  results. 
If  the  President  approves  of  the  treaty  formed  by  the  ne- 
gotiators, he  will  submit  it  to  the  Senate.  The  Senate  will 
then  consider  it  and  either  confirm  it  or  amend  it.  If  it  is 
amended  by  the  Senate,  it  must  be  returned  to  the  negoti- 
ators for  further  consideration  and  approval  by  the  repre- 
sentatives of  the  foreign  power.  The  final  step  in  making 
a  treaty  is  the  formal  exchange  of  ratifications  through 
which  the  parties  to  the  treaty  mutually  declare  that  the 
forms  prescribed  by  law  for  making  a  treaty  have  been 

»  See  p.  129,  and  §  150. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    159 

observed,  and  that  the  treaty  itself  has  become  binding 
with  respect  to  both  parties. 

Topics. — The  process  of  making  a  treaty. — Relation  of  the 
Senate  to  treaty  making. — Final  act :  formal  exchange  of  ratifica- 
tions. 

References. — Bryce,  American  Commonwealth,  49,  Chap.  XI; 
Hart,  Actual  Government,  439-44G;  Lalor,  Cyclopaedia,  iii,  944; 
Miller,  Lectures,  167,  168. 

86.  Relation  of  the  House  of  Representatives  to  Treaty- 
Making. — A  treaty  made  in  the  manner  prescribed  is  valid 
and  has  the  force  of  law,  although  the  House  of  Representa- 
tives may  not  have  been  consulted  concerning  it.  Such 
a  treaty  may  impose  upon  the  Government  an  obligation  to 
pay  a  certain  amount  of  money;  but  under  the  Constitu- 
tion "no  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law."  It  thus 
appears  that  the  House  of  Representatives  may  be  called 
upon  to  vote  to  appropriate  money  for  fulfilling  the  terms 
of  a  treaty  which  it  had  no  voice  in  making.  The  treaty 
has,  however,  been  made  strictly  in  accordance  with  law, 
and  the  obligation  of  the  Government  under  it  is  complete; 
but  the  House  of  Representatives  is  legally  competent  to 
refuse  to  make  the  stipulated  appropriation,  and  thus,  acting 
within  the  sphere  of  its  unquestioned  authority,  may  place 
the  Government  in  the  position  of  having  directly  violated 
a  treaty  voluntarily  made  by  it.  Still,  the  House  of  Repre- 
sentatives is  under  a  moral  obligation  not  to  prevent  the 
lawfully  constituted  authorities  from  carrying  out  the  treaty; 
but  it  cannot  be  compelled  to  act  in  accordance  with  this 
obligation.  "The  treaty  when  thus  ratified  is  obligatory 
upon  the  contracting  states,  independently  of  the  auxiliary 
legislative  measures  which  may  be  necessary  on  the  part  of 
either  in  order  to  carry  it  into  complete  effect. "^     "Neither 

'  Whcaton,  International  Law,  London,  1904,  §  266. 


160     THE   GOVERNMENT   OF  THE   UNITED   STATES 

government  has  anything  to  do  with  the  aiixihary  legis- 
lative measures  necessary,  on  the  part  of  the  other  state, 
to  give  effect  to  the  treaty.  The  nation  is  responsible  to 
the  government  of  the  other  nation  for  its  non-execution, 
whether  the  failure  to  fulfill  it  proceeds  from  the  omission 
of  one  or  other  departments  of  its  government  to  perform 
its  dut}^  in  respect  to  it."  ^ 

In  later  times  the  House  has  claimed  the  right  to  par- 
ticipate in  making  any  treaty  that  changes  the  customs 
duties,  on  the  ground  that  the  Constitution  confers  the 
power  to  regulate  commerce  with  foreign  nations  upon  Con- 
gress and  not  upon  the  President  and  the  Senate.  This 
claim  is,  however,  not  generally  admitted. 

Topics. — What  constitutes  a  valid  treaty  ? — The  case  where 
treaty  calls  for  payment  by  the  United  States. — Position  of  House 
of  Representatives  in  treaty-making. 

References. — Hinsdale,  American  Government,  271-273;  IMiller, 
Lectures,  168;  Wheaton,  International  Law,  see  Index  under 
Treaties. 

87.  Treaty-Making  Power  Limited  by  the  Constitution. 

— The  Constitution  is  made  directly  by  the  legal  sovereign — 
that  is,  by  the  collection  of  bodies  that  have  power  to 
amend  the  Constitution.  These  bodies  are  the  two  houses 
of  Congress  and  the  legislatures  of  the  States,  or  conven- 
tions in  the  States.  Treaties  are  made  by  the  President 
and  the  Senate,  and  Federal  statutes  are  made  by  the 
President  and  the  Congress.  The  relation  between  the 
makers  of  the  Constitution  and  the  makers  of  treaties  is 
the  relation  between  principal  and  agent.  The  agent  has 
no  power  to  nullify  or  set  aside  the  orders  or  decrees  of  his 
principal.  Thus  treaties  and  Federal  statutes  are  inferior 
to,  and  limited  by,  the  Constitution  of  the  United  States; 
and  in  so  far  as  these  treaties  or  statutes  are  contrary  to 

'  Lawrence's  Wheaton,  International  Law,  p.  459,  note. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    IGl 

the  provisions  of  the  Constitution  they  arc  null  and  void. 
Treaties  and  Federal  statutes  are,  however,  the  law  of  the 
land  in  the  sense  that  they  are  valid  throughout  the  Union, 
and  that  their  provisions  cannot  be  nullified  by  State  laws 
or  State  constitutions.  A  treaty  and  a  Federal  statute 
have  Hke  authority;  but  a  treaty  of  later  date  than  a 
statute  nullifies  all  contrary  provisions  of  the  statute,  while, 
on  the  other  hand,  a  statute  of  later  date  than  a  treaty 
nullifies  all  contrary  provisions  of  the  treaty.  Referring 
to  the  relation  of  a  treaty  to  the  Constitution  and  the  re- 
lation of  a  treaty  to  an  act  of  Congress,  the  Supreme  Court, 
in  the  Cherokee  Tobacco  case,  makes  the  following  state- 
ment: "It  need  hardly  be  said  that  a  treaty  cannot  change 
the  Constitution  or  be  held  valid  if  it  be  in  violation  of 
that  instrument.  This  results  from  the  nature  and  funda- 
mental principles  of  our  Government.  The  effect  of  treaties 
and  acts  of  Congress,  when  in  conflict,  is  not  settled  by  the 
Constitution.  But  the  question  is  not  involved  in  any  doubt 
as  to  its  proper  solution.  A  treaty  may  supersede  a  prior 
act  of  Congress,  and  an  act  of  Congress  may  supersede  a 
prior  treaty." 

Topics. — Relation  of  treaties  and  Federal  statutes  to  the  Con- 
stitution.— Their  relation  to  State  laws  and  State  constitutions. — 
Relation  of  treaty  to  Federal  statute. 

References. — Hinsdale,  American  Government,  270-273;  Ilart, 
Actual  Government,  439— 1-14. 

88.  Jay's  Treaty  of  1794  and  the  House  of  Representa- 
tives.— At  the  beginning  of  Washington's  administration  he 
found  British  troops  occupying  the  northern  frontier  of  the 
Union,  Spain  making  encroachments  from  the  south,  and 
an  agent  of  France  in  the  United  States  attempting  to  fit 
out  privateers  to  be  used  by  France  against  England.  To 
form  a  treaty  that  might  remove  these  evils  and  avert  a  war, 
John  Jay,  the  Chief  Justice  of  the  United  States,  was  sent 


162      THE   GOVERNMENT   OF  THE   UNITED   STATES 

to  London  as  a  special  envoy.  He  negotiated  a  treaty 
which  was  signed  in  1794.  It  provided  for  the  withdrawal 
of  the  British  garrisons  from  the  northwestern  posts,  and 
for  the  adjustment  of  disputes  respecting  the  boundaries. 
It  provided  for  a  joint  commission  to  fix  the  amount  of 
payments  to  be  made  by  the  United  States  to  Great  Britain 
on  behalf  of  British  creditors;  and  for  another  similar 
commission  to  determine  the  amount  of  payments  to  be 
made  by  Great  Britain  to  the  United  States  on  account  of 
illegal  captures.  It  made  provision  for  the  extradition  of 
persons  charged  with  crime,  and  for  regulating  commercial 
intercourse.  "  It  contained  no  disavowal  of  the  arbitrary 
principles  which  Great  Britain  had  asserted,  no  provisions 
that  free  ships  should  make  free  goods;  and  it  granted  to 
Great  Britain  the  privileges  for  her  vessels  of  war  and  prizes 
which  France  enjoyed  under  the  treaty  of  1778."  The 
treaty  was  generally  regarded  as  defective,  and  a  great 
popular  outcry  was  raised  against  it.  Washington  saw  itfj 
defects,  but  he  believed  that  no  better  treaty  could  be  ob- 
tained then.  The  House  of  Representatives  was  called 
upon  to  appropriate  money  to  meet  the  expenses  involved 
in  carrying  out  the  treaty,  and  it  proposed  to  take  advan- 
tage of  this  situation  to  enforce  its  claim  to  have  a  hand  in 
making  treaties.  It  asked  for  the  instructions  under  which 
Jay  had  acted.  Washington  refused  to  accede  to  this 
request,  although  the  instructions  had  already  been  pub- 
lished. He  wished  to  emphasize  the  fact  that  the  assent 
of  the  House  was  not  necessary  to  the  validity  of  a  treaty. 
The  House  of  Representatives  finally  yielded,  and  in  no 
subsequent  instance  has  it  failed  to  make  the  appropriation 
required  to  fulfill  the  conditions  of  a  treaty. 

Topics. — Object  of  Jay's  treaty  of  1794. — Terms  of  the  treaty. — 
Popular  view  of  it. — Washington's  attitude  toward  it. — Course 
proposed  by  House  of  Representatives. — Significance  of  the  final 
action. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    163 

References. — Lalor,  Cydopoedia,  ii,  634;  iii,  945;  Hinsdale, 
American  Government,  272;  McLaughlin,  History  of  the  American 
Nation,  250. 

89.  Treaties  Annexing  Territory. — Following  are  the  im- 
portant treaties,  signed,  rejected,  or  withdrawn,  involving 
the  annexation  of  territory  to  the  United  States: 

1.  In  April,  1803,  Louisiana  was  by  treaty  purchased 
from  France.  Thomas  Jefferson,  who  was  then  President, 
held  that  in  making  this  treaty  the  Executive  had  "done  an 
act  beyond  the  Constitution,"  but  that  the  Legislature 
should  ratify  it  and  pay  the  sum  promised  "and  throw 
themselves  on  their  country  for  doing  for  them,  unauthor- 
ized, what  we  know  they  would  have  done  for  themselves 
had  they  been  in  a  situation  to  do  it."  To  remedy  the  sup- 
posed unconstitutionality  of  the  purchase,  Jefferson  sug- 
gested an  amendment  to  the  Constitution,  providing  that 
the  inhabitants  of  Louisiana  should  stand  "  as  to  their 
rights  and  obligations  on  the  same  footing  with  other 
citizens  of  the  United  States  in  analogous  situations."  In 
the  House  of  Representatives  the  vote  to  carry  the  treaty 
into  effect  stood  ninety  to  twenty-five,  the  minority  holding 
that  the  annexation  was  unconstitutional.  Louisiana  was, 
however,  accepted  without  an  amendment,  and  has  since 
been  considered,  without  question,  a  part  of  the  territory 
of  the  United  States. 

2.  By  treaty  signed  February  22,  1819,  Spain  ceded 
Florida  to  the  United  States.  In  consideration  of  this 
cession  the  United  States  agreed  to  pay  claims  against 
Spain  amounting  to  $5,000,000.  Spain  withheld  her  ratifi- 
cation of  this  treaty  till  1821,  asking  as  price  of  such  ratifica- 
tion that  the  United  States  should  refuse  to  recognize  the 
revolted  Spanish-American  colonies. 

3.  In  1844,  Calhoun,  who  was  then  Secretary  of  State 
under  President  Tyler,  drew  up  the  form  of  a  treaty  of 


164      THE   GOVERNMENT   OF   THE  UNITED   STATES 

annexation  with  Texas.  This  was  submitted  to  the  Senate 
and  rejected  by  a  vote  of  sixteen  to  thirty-five.  The  next 
year  a  joint  resolution  was  passed  by  the  House  of  Represent- 
atives, which  affirmed  that  "  Congress  doth  consent  that 
the  territory  properly  included  within,  and  rightly  belong- 
ing to,  the  Republic  of  Texas  may  be  erected  into  a  new 
State,  to  be  called  the  State  of  Texas."  This  resolution 
was  amended  by  additions  permitting  four  new  States  to  be 
formed  out  of  this  territory  besides  the  State  of  Texas,  and 
authorizing  the  President  to  make  a  treaty  of  annexation 
with  Texas.  In  its  amended  form  the  resolution  was  passed 
by  the  Senate  and  accepted  by  the  House,  but  a  treaty  with 
Texas  was  never  made.  The  annexation  was  effected  by  a 
joint  resolution  of  Congress. 

4.  The  Treaty  of  Guadalupe-Hidalgo,  signed  February 
2,  1S48,  and  ratified  by  the  Senate,  March  10  of  the  same 
year,  closed  the  Mexican  War  and  ceded  to  the  United  States 
the  territory  of  New  Mexico  and  California.  This  cession 
was  made  under  the  agreement  that  the  United  States  should 
pay  $15,000,000  and  assume  $3,250,000  in  claims  of  Amer- 
ican citizens  against  Mexico. 

5.  The  Gadsden  Treaty,  made  in  1853,  was  a  treaty  of 
purchase.  Under  it  the  United  States  paid  $10,000,000 
for  a  certain  territory  south  of  the  Gila  River,  embracing 
45,535  square  miles. 

6.  The  treaty  with  Russia,  by  which  Alaska  was  ceded 
to  the  United  States,  was  made  March  30,  1867,  and  was 
ratified  by  the  Senate  on  June  20  of  the  same  year.  It 
added  to  the  territory  of  the  United  States  a  region  577,390 
square  miles  in  extent.  At  that  time  it  was  thought  to  be 
valuable  chiefly  for  its  fur-bearing  animals,  but  since  then 
it  has  been  found  to  contain  large  quantities  of  gold. 

7.  In  1893  a  treaty  was  agreed  upon  between  the  Gov- 
ernment of  the  United  States  and  the  new  Hawaiian  Govern- 
ment that  had  been  established  as  a  consequence  of  the 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    165 

revolution  in  which  the  Queen  was  deposed.  It  was  sent 
to  the  Senate  for  ratification;  but  before  action  was  taken 
on  it  President  Harrison's  term  of  office  expired.  The 
treaty  was  subsequently  withdrawn  from  the  Senate  by 
President  Cleveland.  The  breaking  out  of  the  war  between 
the  United  States  and  Spain  in  1898  strengthened  the  party 
in  favor  of  annexation,  and  in  July  Congress  passed  a  joint 
resolution  by  which  the  Hawaiian  Islands  and  their  de- 
pendencies were  "annexed  as  part  of  the  territory  of  the 
United  States." 

8.  By  the  Treaty  of  Paris,  closing  the  Spanish-American 
War,  made  December  10,  1898,  Sj^ain  ceded  to  the  United 
States  the  Island  of  Porto  Rico,  and  other  islands  then  under 
Spanish  sovereignty  in  the  West  Indies,  and  the  Island  of 
Guam  in  the  Marianas  or  Ladrones.  By  the  same  treaty 
Spain  ceded  also  the  Philippine  Islands,  and  the  United 
States  paid  Spain  the  sum  of  $20,000,000.  This  treaty  was 
approved  by  the  Senate  February  6,  1899,  and  ratifications 
were  exchanged  in  Washington,  April  1 1  of  the  same  year. 

Topics. — Louisiana  purchase. — Jefferson 's  position. — Attitude 
of  the  House  of  Representatives. — Cession  of  Florida. — Annexation 
of  Texas. — Treaty  of  Guadaloupe  Hidalgo. — Gadsden  Treaty. — Pur- 
chase of  Alaska. — Annexation  of  Hawaii. — Treaty  of  Paris,  1898. 

References. — Hart,  Actual  Government,  342-346;  Lalor,  Cy- 
clopcedia,  i,  93-99. 

go.  The  President's  Messages  to  Congress. — The  Presi- 
dent has  need  to  address  the  Senate  in  connection  with  the 
making  of  treaties  with  foreign  powers.  He  has,  moreover, 
need  to  address  the  whole  Congress  in  connection  with 
making  laws.  Holding  the  power  of  a  limited  veto  over 
proposed  laws,  he  thereby  possesses  some  of  the  functions 
of  a  legislator  and  is  thus  under  the  necessity  of  communi- 
cating to  Congress  his  views  respecting  bills  passed  by  that 
body.     It  was  presumed  by  the  makers  of  the  Constitution 


166      THE   GOVERNMENT   OF  THE   UNITED   STATES 

that  it  would  be  advisable  for  him,  as  the  political  leader 
of  the  nation,  to  have  opportunity  to  present  to  Congress 
a  general  statement  concerning  the  condition  of  the  country, 
an  outline  of  his  policy,  and  such  recommendations  as  to 
legislation  as  might  seem  to  him  expedient.  In  the  Con- 
stitution it  was  therefore  provided  that,  "he  shall,  from 
time  to  time,  give  to  Congress  information  of  the  state  of 
the  Union  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient." 
Under  this  constitutional  provision  the  President  sends  a 
general  message  to  Congress  at  the  beginning  of  each  annual 
session  in  December,  and  special  messages  as  the  business 
of  the  administration  may  require.  During  the  administra- 
tions of  Washington  and  Adams  the  annual  messages  of 
the  Presidents  were  delivered  in  person.  This  procedure 
was  like  that  of  the  king's  "speech  from  the  throne"  to  the 
British  Parliament.  In  delivering  the  main  body  of  his 
message  the  President  addressed  Congress  as,  "Fellow- 
citizens  of  the  Senate  and  House  of  Representatives."  The 
part  of  the  message  relating  to  revenue  and  appropriations 
was  addressed  to  the  "Gentlemen  of  the  House  of  Repre- 
sentatives," and  the  conclusion,  to  the  "Gentlemen  of  the 
Senate  and  House  of  Representatives."  The  practice  of 
the  British  Parliament  was  further  followed  in  the  com- 
position of  an  answer  to  the  President's  address  by  the  two 
houses  of  Congress.  Even  while  this  practice  was  in  vogue 
with  respect  to  the  annual  message,  special"  messages  were 
usually  sent  in  writing.  The  practice  of  delivering  the 
annual  message  in  person  was  abandoned  in  Jefferson's 
administration,  and  his  substitution  of  the  written  for  the 
spoken  message  furnished  a  precedent  that  has  been  followed 
by  all  later  Presidents. 

Topics. — President's  need  to  address  Congress.— General  mes- 
sage.— First  general  messages  delivered  in  person. — Early  special 
messages. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    167 

References.— Dawes,  How  We  Are  Governed,  188;  Fiske,  Civil 
Government,  243;  Lalor,  Cyclopcedia,  ii,  828;  Miller,  Lectures,  168- 
170. 

gi.  Special  Messages. — The  President's  special  messages 
to  Congress  embrace  all  communications  sent  by  him  in 
transacting  the  regular  business  of  the  administration. 
Whenever  an  appointment  is  made  that  requires  confir- 
mation by  the  Senate,  this  appointment  is  brought  to  the 
attention  of  the  Senate  by  a  special  message  from  the  Presi- 
dent. Whenever  a  bill  passed  by  the  two  houses  is  pre- 
sented to  him  for  his  signature  and  he  refuses  to  sign  it,  he 
communicates  this  fact  and  the  reason  for  his  decision  by  a 
special  message.  The  greater  part  of  the  special  messages 
addressed  to  Congress  are  sent  to  communicate  the  Presi- 
dent's veto  of  bills  passed  by  that  body,  and  such  messages 
deal  simply  with  the  considerations  that  have  moved  the 
President  to  disapprove  the  bill  in  question.  A  special 
message  is  the  means  by  which  the  President,  participating 
in  legislation,  makes  his  opinion  effective  either  to  defeat  a 
bill  or  to  cause  it  to  be  carefully  reconsidered. 

Topics. — Nature  of  the  special  message. — How  a  bill  is  vetoed. 
References. — Dawes,  How  We  Are  Governed,  188;   Hinsdale, 
American  Government,  281;  Miller,  Lectures,  170. 

92.  Offices  and  Appointments. — Some  of  the  offices  of 
the  Federal  Government  were  created  directly  by  the  makers 
of  the  Constitution,  while  others  had  their  origin  in  laws 
passed  by  Congress.  The  Constitution  provides  directly  for 
senators  and  representatives,  for  presidential  electors,  for 
the  President  and  the  Vice-President,  and  for  a  Supreme 
Court.  The  larger  part  of  the  offices  of  the  Federal  Govern- 
ment were  created  by  Congress,  such  as  the  inferior  courts, 
heads  of  the  several  departments,  and  the  large  number  of 
subordinate  offices  through  which  the  Federal  administra- 
tion is  conducted.     The  power  to  create  offices  of  the  latter 


16S      THE   GOVERNMENT  OF  THE  UNITED  STATES 

class,  like  all  the  other  powers  of  Congress,  was  derived  from 
the  Constitution.  While  the  President  possesses  the  power 
to  fill  offices  by  appointment,  he  has  no  power  to  create 
offices.  His  appointments  in  the  case  of  the  more  irnportant 
officers  are  subject  to  confirmation  by  the  Senate.  This  is 
true  of  judges  of  the  Supreme  Court,  the  heads  of  depart- 
ments, consuls,  ministers,  and  ambassadors;  but  many  of 
the  inferior  officers  the  President  may  appoint  without  ref- 
erence to  the  Senate.  Besides  the  officers  appointed  by 
the  President,  there  are  many  inferior  officers  who  are  ap- 
pointed by  courts  of  law  or  by  the  heads  of  departments. 
The  Constitution  authorizes  Congress  to  "  vest  the  appoint- 
ment of  such  inferior  officers  as  they  think  proper  in  the 
President  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments";  but  it  does  not  enable  us  to  make  a  clear 
distinction  between  inferior  officers  and  those  persons  in 
the  public  service  who  are  designated  "employees,"  such  as 
ordinary  laborers  in  the  navy  yards  or  arsenals. 

Topics. — Origin  of  the  Federal  offices. — Method  of  appointing 
Federal  officers. — Part  taken  by  the  Senate. — Appointment  of  in- 
ferior officers. 

References. — Biyce,  American  Commonwealth,  i,  61-60;  109, 
110,  394;  Dawes,  How  We  Are  Governed,  191;  Hart,  Actual  Govern- 
ment, 270-272;  Miller,  Lectures,  156-160. 

93.  Attitude  of  the  Senate  toward  Appointments  by  the 
President. — The  framers  of  the  Constitution  thought  that  a 
bill  would  receive  more  just  and  thorough  criticism  if  re- 
quired to  pass  through  two  legislative  bodies  instead  of 
one.  They  thought  also  that  candidates  for  appointment 
to  important  offices  would  be  more  carefully  considered  if 
their  qualifications  had  to  be  reviewed  not  only  by  the 
President  but  also  by  the  Senate.  This  was  the  original 
theory  on  which  the  President  was  required  to  submit  the 
more  important  appointments  to  the  Senate.     While  this 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    1G9 

plan  generally  met  with  approval,  a  fear  was  at  the  same 
time  expressed  that  the  Senate  would  usurp  executive 
functions.  John  Adams  said:  "  Senators  will  be  solicited  by 
candidates  for  office.  A  senator  of  great  influence  will  be 
ambitious  of  increasing  his  influence  and  will  use  it  to  get 
out  his  enemies  and  get  in  his  friends."  This  prediction 
has,  in  a  measure,  become  true.  Senators  have  sometimes 
demanded  that  appointments  from  the  State  which  they 
represent  should  be  made  in  accordance  with  their  wishes; 
and  sometimes  the  Senate  has  rejected  persons  nominated, 
simply  because  they  were  personally  not  acceptable  to  the 
senators  from  the  State  in  which  they  lived.  This  action 
was  taken  by  the  Senate  with  respect  to  Washington's 
nomination  of  a  naval  officer  for  the  port  of  Savannah. 
This  was  the  first  nomination  rejected;  and  the  ground  of 
rejection  was  not  that  the  candidate  was  unfit  for  the  office, 
but  that  he  was  not  personally  acceptable  to  the  senators 
from  Georgia.  In  following  this  practice,  known  as  the 
courtesy  of  the  Senate,  the  Senate  is  not  required  to  give 
its  reasons  for  refusal.  "This  method  of  dealing  with  the 
subject  has  obviously  defeated  the  purpose  of  the  Con- 
stitution, which  was  to  secure  the  disinterested  judgment  of 
the  Senate  as  a  body  upon  the  merits  of  the  candidate.  All 
that  is  secured  under  this  rule  of  courtesy  is  the  favor  of  the 
local  senators.  By  giving  them  directly  the  control  of  all 
the  high  Federal  appointments  for  their  State,  and  as  a 
consequence  substantially  the  control  of  the  subordinates  of 
their  appointees,  the  senators  have  become  more  and  more 
the  dictators  of  State  politics.  "^  The  deference  shown  the 
senators  in  this  matter  has  doubtless  been  more  or  loss 
influential  in  making  them  considerate  of  the  President's 
wishes  in  the  appointment  of  the  members  of  the  Cabinet, 
ambassadors,  and  other  high  officers,  so  that  only  in  very 

'  Dorman  B.  Eaton,  in  Lalor's  Cyclopedia,  i,  581. 
12 


170      THE   GOVERNMENT   OF  THE   UNITED  STATES 

rare  and  exceptional  eases  is  the  confirmation  of  the  appoint- 
ment of  such  an  officer  refused. 

Topics. — Reason  for  requiring  confirmation  by  the  Senate. — 
Senatorial  demands  respecting  appointments. — Senatorial  courtesy. 
— Appointment  of  ministers  and  members  of  the  Cabinet. 

References. — Hinsdale,  American  Government,  275;  Lalor, 
Cyclopcedia,  i,  580;  Willoughby,  Rights  and  Duties,  212. 

94.  Removals  from  Office. — The  Constitution  contains 
no  provision  concerning  removals  from  office  except  under 
impeachment,  and  in  cases  of  impeachment  the  judgment 
"shall  not  extend  further  than  to  removal  from  office  and 
disqualification  to  hold  and  enjoy  any  office  of  honor,  trust, 
or  profit  under  the  United  States."  The  general  decision 
of  the  Supreme  Court  covering  this  subject  affirms  that  "in 
the  absence  of  all  constitutional  provision  or  statutory  regu- 
lation, it  would  seem  to  be  a  sound  and  necessary  rule  to 
consider  the  power  of  removal  as  incident  to  the  power  of 
appointment."  Some  of  the  early  statesmen  thought,  with 
Hamilton,  that  a  principle  like  this  should  be  made  generally 
applicable;  and  that  if  the  consent  of  the  Senate  was  neces- 
sary for  appointment,  it  should  be  necessary  for  removal. 
Others,  including  Madison,  held  that,  although  an  officer 
had  been  appointed  "  by  and  with  the  advice  and  consent  of 
the  Senate,"  he  might,  nevertheless,  be  removed  by  the 
President  alone.  The  question  was  decided  by  Congress  in 
1789,  in  favor  of  the  latter  view,  which  has  since  prevailed 
in  practice.  An  attempt  was  made,  however,  in  1867,  to 
establish  a  different  policy,  when  Congress  by  a  two-thirds 
vote  passed  the  Tenure-of-office  Bill  over  the  President's 
veto.  This  bill  provided  that  the  consent  of  the  Senate 
should  be  required  for  the  removal  of  officers  appointed  by 
the  President.  Two  years  later  part  of  this  law  was  re- 
pealed. The  rest  of  it  continued  in  force  until  1885,  when 
this  part  also  was  repealed 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    171 

Topics. — Judgment  in  case  of  impeachment. — Power  of  re- 
moval.— (Question  of  consent  of  the  Senate  to  removal. — Tenure-of- 
office  bill;  reason  for  its  passage. 

References. — Dawes,  How  We  Are  Governed,  106;  Hart, 
Actual  Government,  285-288;  Hinsdale,  American  Government,  276- 
278;  Lalor,  Cyclopaedia,  iii,  565,  895;  Miller,  Lectures,  160-162. 

95.  "  Spoils  System  "  and  Merit  System. — The  theory  of 
republican  government  involves  the  idea  that  the  voters  in 
selecting  persons  to  fill  offices  will  select  the  persons  who  are 
best  fitted  to  perform  the  duties  connected  with  the  office  in 
question.  It  involves  also  the  supposition  that  when 
officers  are  empowered  to  appoint  other  officers  the  same 
end  will  be  kept  in  view;  but  in  practice  it  is  found  that  the 
person  who  has  the  power  of  appointment  is  sometimes 
tempted  to  forget  the  public  good  and  to  appoint  his  personal 
friends,  or  persons  who  may  help  him  to  obtain  the  objects 
of  his  political  ambition,  or  persons  who  have  worked  for 
the  success  of  the  party.  In  cases  where  the  persons  ap- 
pointed would  displace  other  persons,  the  power  of  appoint- 
ment has  sometimes  been  used,  and  may  be  used,  to  punish 
political  enemies  by  causing  their  removal  from  office. 
Some  or  all  of  these  motives  have  been  effective  in  the  poli- 
tics of  the  United  States;  and  under  their  influence  a  prac- 
tice known  as  the  "  Spoils  System  "  grew  up.  The  funda- 
mental idea  of  this  system  is  that  the  persons  appointed  to 
office  shall  be  such  as  have  rendered  efficient  service  in 
making  the  party  victorious  and  sucli  as  may  be  expected 
to  work  for  the  continued  supremacy  of  the  party.  Inas- 
much as  the  person  appointed  knew  that  he  would  be 
removed  from  office  if  his  party  should  be  defeated,  it  was 
expected  that  he  would  be  moved  by  this  consideration  to 
work  for  its  success. 

There  were  few  removals  by  the  early  Presidents,  but 
Jackson  made  ten  times  as  many  as  had  been  made  in  all  of 


172      THE   GOVERNMENT   OF  THE  UNITED   STATES 

the  ten  preceding  presidential  terms.  The  "  Spoils  System  " 
was  named  in  the  United  States  Senate  when  Senator 
Marcy,  of  New  York,  in  1832,  was  discussing  the  practice 
as  upheld  by  the  politicians  of  the  day,  particularly  by  the 
New  York  politicians.  "  When  they  are  contending  for 
victory,"  he  said,  "they  avow  the  intention  of  enjoying  the 
fruits  of  it.  If  they  are  defeated,  they  expect  to  retire  from 
office;  if  they  are  successful,  they  claim,  as  a  matter  of  right, 
the  advantages  of  success.  They  see  nothing  wrong  in 
the  rule  that  to  the  victor  belong  the  spoils  of  the  enemy." 
The  practice  of  removing  from  office  adherents  of  other 
parties  and  of  making  appointments  for  party  purposes 
became,  in  the  course  of  time,  so  general  that  the  purity  of 
the  political  life  of  the  Republic  was  seriously  threatened. 
Seeing  that  the  power  of  appointment  and  removal  was 
being  used  for  personal  and  party  ends,  and  that  the  public 
welfare  and  the  efficiency  of  the  Government  were  suffering 
serious  deterioration,  a  large  part  of  the  people  determined, 
if  possible,  to  check  the  evil,  and  made  a  persistent  demand 
for  a  reform  of  the  civil  service.  This  reform  has  been  so  far 
carried  out  that  a  Merit  System,  as  opposed  to  the  "  Spoils 
System,"  has  been  established.  The  Merit  System  provides 
that  persons  shall  be  appointed  inferior  officers  and  em- 
ployees only  after  a  proper  examination,  and  that  these 
appointments  shall  be  made  with  sole  reference  to  the  fitness 
of  the  persons  appointed  to  perform  the  duties  devolving 
upon  them.  It  provides,  moreover,  that  even  in  cases  where 
the  administration  is  changed  from  one  party  to  the  other, 
these  officers  or  employees  shall  hold  their  offices  or  employ- 
ment during  good  behavior. 

Topics. — The  theory  of  republican  government  with  respect  to 
officers. — The  practice. — Description  of  "Spoils  System." — Jack- 
son's removals. — Origin  of  the  name  "  Spoils  System." — Reason  for 
demanding  reform  in  the  civil  service. — Definition  of  the  Merit 
System. — Its  fundamental  provision. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    173 

References. — Bryce,  American  Commonweallh,  i,  G3,  394, 
500,  642;  ii,  50,  120,  131-142,  166,  241,  589,  846;  Hinsdale,  Ameri- 
can Government,  211;  Lalor,  Cyclopaedia,  iii,  782;  Macy,  Our  Govern- 
ment, 134-138. 

96.  Civil  Service  Act. — The  demand  for  the  regulation 
and  improvement  of  the  civil  service  resulted  in  an  act  for 
the  purpose,  approved  January  16,  1883,  This  act  author- 
ized the  President  to  appoint,  with  the  advice  and  consent 
of  the  Senate,  the  United  States  Civil  Service  Commission, 
to  be  composed  of  three  persons,  not  more  than  two  of 
whom  should  be  adherents  of  the  same  party.  The  duties 
of  the  commission  under  this  act  are,  among  other  things, 
to  aid  the  President  in  making  rules  for  carrying  the  civil- 
service  law  into  effect;  to  hold  competitive  examinations  for 
testing  the  fitness  of  applicants  for  public  service,  then  or 
afterward  to  be  classified;  and  to  make  such  arrangements 
that  offices,  places,  and  employments  should  be  filled  by 
selections,  according  to  grade,  from  among  those  graded 
highest  as  a  result  of  such  competitive  examination.  Ex- 
ercising his  constitutional  powers,  and  authorized  by  Section 
1753  of  the  Revised  Statutes  and  by  the  Civil  Service  Act  of 
1883,  the  President,  from  time  to  time,  makes  and  promul- 
gates rules  governing  in  detail  the  action  of  the  Civil  Service 
Commission. 

Section  1753  of  the  Revised  Statutes  is  as  follows:  "The 
President  is  authorized  to  prescribe  such  regulations  for  the 
admission  of  persons  into  the  civil  service  of  the  United 
States  as  may  best  promote  the  efficiency  thereof,  and  ascer- 
tain the  fitness  of  each  candidate  in  respect  to  age,  health, 
character,  knowledge,  and  ability  for  the  branch  of  service 
into  which  he  seeks  to  enter;  and  for  this  purpose  he  may  em- 
ploy suitable  persons  to  conduct  such  inquiries,  and  may  pre- 
scribe their  duties,  and  establish  regulations  for  the  conduct  of 
persons  who  may  receive  appointments  in  the  civil  service." 


174      THE   GOVERNMENT   OF  THE  UNITED   STATES 

Topics.— Substance  of  the  Civil  Service  Act.— Duties  of  the 
Civil  Service  Commission. — Rules  govermng  the  Civil  Service  Com- 
mission.— Section  1753  of  the  Revised  Statutes. 

References. — Bryce,  American  Commonwealth,  i,  646;  ii,  27, 
59,  139,  161,  609,  847;  Ford,  American  Citizen's  Manual,  Part  I, 
116-144;  Hart,  Practical  Essays,  81-98;  Hart,  Actual  GovernmeiU, 
288-295;  Hinsdale,  American  Government,  277,  278;  Lalor,  Cy- 
clopcBdia,  i,  478;  Macy,  Our  Government,  139. 

97.  Diplomatic  Agents. — The  President  is  directly  au- 
thorized by  the  Constitution  to  appoint,  among  other  of- 
ficers, "ambassadors,  other  public  ministers,  and  consuls." 
Ambassadors  and  diplomatic  envoys  or  ministers  and  charges 
d'affaires  are  agents  sent  by  one  sovereign  state  to  another 
sovereign  state  "to  represent  one  state  at  the  capital  of 
another,  or  to  negotiate  and  treat  with  that  other  on  national 
affairs."     They  may  be  sent  on  temporary  or  on  extraor- 
dinary missions,  or  to  become  residents,  during  the  pleasure 
of  the  appointing  power,  at  the  capital  of  the  state  to  which 
they  are  sent.     The  right  to  send  and  to  receive  diplomatic 
agents  is  an  incident  of  sovereignty.     A  state,  however,  is 
competent  to  refuse  at  any  time  to  receive  a  diplomatic 
agent  from  another  state  ;    but  if  this   is    done  without 
reasonable  grounds,  the  act  may  be  considered  as  a  rup- 
ture of  friendly  relations.     A  diplomatic  agent  within  the 
boundaries   of  a   foreign   nation   enjoys  certain   privileges 
and  immunities  not  accorded  to  the  ordinary  member  of 
his  nation.     He  "  cannot  be  tried  for  a  criminal  offense  by 
the  courts  of  the  state  to  which  he  is  accredited,  and  cannot, 
as  a  rule,  be  arrested  ";  and  this  immunity  is  enjoyed  also  by 
the  couriers  of  the  legation. ^    Children  born  to  a  diplomatic 
agent  within  the  limits  of  a  foreign  country  do  not  become 
subjects  of  that  country,  but  retain  the  nationality  of  the 
father;    but  any  real  property  held  by  a  diplomatic  agent 

'  Hall,  International  Law,  172. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    175 

within  the  limits  of  the  country  to  whose  government  he  is 
accredited  is  under  the  jurisdiction  of  that  government. 
"  His  personal  effects  and  the  property  belonging  to  him  as 
representative  of  his  sovereign  are  not  subject  tc  taxation. 
Otherwise  he  enjoys  no  exemption  from  taxes  or  duties  as 
of  right.  By  courtesy,  however,  most,  if  not  all,  nations 
permit  the  entry,  free  of  duty,  of  goods  intended  for  his 
private  use."  ^ 

Topics. — Who  are  diplomatic  agents. — Objects  of  their  mission. 
— Reception  or  rejection. — Privileges  and  immunities. 

References. — Dawes,  How  We  Are  Governed,  209-211;  Fiske, 
Civil  Government,  246;  Hinsdale,  American  Government,  279;  Hart, 
Actual  Government,  433-436;  Lalor,  Cyclopaedia,  i,  30-33;  Hall,  In- 
ternational Law,  172-185. 

98.  Consuls. — Consuls  are  persons  appointed  by  govern- 
mental authorities  to  reside  in  a  foreign  country,  in  order 
to  watch  over  the  interests  of  citizens  of  the  country  they 
represent  who  may  be  visiting  or  engaged  in  business  in 
those  countries,  and  to  protect,  facilitate,  and  extend  com- 
merce between  the  nation  to  which  they  are  sent  and  the 
nation  sending  them.  In  the  performance  of  their  duties 
"  they  receive  the  protests  and  reports  of  captains  of  vessels 
of  their  nation  with  reference  to  injuries  sustained  at  sea; 
they  legalize  acts  of  judicial  or  other  functionaries  by  their 
seal  for  use  within  their  own  country;  they  authenticate 
births  and  deaths;  they  administer  the  property  of  subjects 
of  their  state  dying  in  the  country  where  they  reside;  they 
send  home  shipwrecked  and  unemployed  sailors  and  other 
destitute  persons;  they  arbitrate  on  differences  which  are 
voluntarily  brought  before  them  by  their  fellow  country- 
men, especially  in  matters  relating  to  commerce,  and  to 
disputes  which  have  taken  place  on  board  ship;  they  exer- 
cise disciplinary  jurisdiction,  though  not,  of  course,  to  the 

'  Hall,  International  Law,  184. 


176      THE  GOVERNMENT   OF  THE  UNITED  STATES 

exclusion  of  the  local  jurisdiction,  over  the  crews  of  vessels 
of  the  state  in  the  employment  of  which  they  are;  they  see 
that  the  laws  are  properly  administered  with  reference  to  its 
subjects,  and  communicate  with  their  government  if  in- 
justice is  done;  they  collect  information  for  it  upon  com- 
mercial, economical,  and  political  matters."  ^ 

Consular  officers  are  divided  into  four  classes  of  different 
grades;  namely,  consuls  general,  consuls,  vice  consuls,  and 
consular  agents.  A  consular  officer  is  not  necessarily  a 
citizen  of  the  nation  he  represents.  He  may  be  a  citizen 
or  a  subject  of  the  country  in  which  his  duties  are  performed 
or  of  a  third  country.  When  a  consul  is  appointed,  his 
commission  or  patent  is  communicated  to  the  government 
of  the  country  in  which  he  is  to  reside;  but  he  may  not 
begin  to  perform  his  duties  until  he  has  received  permission 
from  that  government.  The  order  giving  this  permission  is 
called  an  exequatur,  and  may  be  revoked  by  the  government 
that  issued  it. 

Diplomatic  duties  are  sometimes  imposed  upon  consuls. 
In  such  cases  they  are  accredited,  like  other  diplomatic 
agents,  near  the  proper  governmental  authorities  of  the 
nations  to  which  they  are  sent;  and  their  consular  char- 
acter, under  these  conditions,  is  subordinated  to  their  supe- 
rior diplomatic  character.  While  charged  with  diplomatic 
duties  they  enjoy  whatever  privileges  or  immunities  attach 
to  diplomatic  agents  of  the  rank  to  which  they  are  assigned. 

In  some  of  the  non-Christian  countries,  in  which  resident 
foreigners  are  exempt  from  the  native  law,  European  and 
American  consuls  exercise  extraordinary  powers.  Their 
position  is  usually  determined  by  treaties  between  their 
states  and  the  states  to  which  they  are  sent.  They  act  as 
judges  and  hold  courts  at  their  consulates.  Their  judicial 
authority  covers  all  civil  and  criminal  matters  in  which 

^  Hall,  International  Law,  316,  317. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    177 

their  countrymen  are  concerned.  The  principal  countries 
in  which  foreign  consuls  exercise  these  extraordinary  powers 
are  Turkey,  Siam,  and  China.  Japan  was  formerly  included 
in  this  list;  but  her  progress  and  adoption  of  Western  in- 
stitutions led  to  the  formation  in  1894,  of  treaties  with  the 
United  States  and  other  countries,  through  which  the  juris- 
diction of  the  consular  courts  in  Japan  came  to  an  end 
in  1899.  In  the  other  countries  mentioned  the  practice  is 
still  to  try  offenses  by  natives  against  foreigners  in  the  local 
courts;  but  offenses  by  foreigners  against  natives  are  tried 
in  the  consular  court  of  the  country  to  which  the  offending 
foreigner  belongs.  If  the  case  is  between  two  foreigners, 
it  is  tried  in  the  court  of  the  defendant's  consul;  that  is  to 
say,  the  person  who  is  accused  has  the  right  to  be  tried 
before  the  court  of  his  own  consul. 

Topics. — Definition  of  a  consul. — Statement  of  his  duties. — 
Four  classes  of  consular  officers. — Consul  not  necessarily  a  citizen 
of  the  country  he  represents. — An  exequatur. — Consuls  performing 
diplomatic  duties. — Extraordinary  powers  of  consuls  in  semicivil- 
ized  countries. 

References. — Hall,  International  Law,  see  Index  under  Con- 
suls;  Fiske,  Civil  Government,  246;  Lalor,  Cyclopaedia,  i,  613. 

99.  The  Executive  Departments. — The  Constitution  pro- 
vides for  a  separation  of  legislative,  executive,  and  judi- 
cial powers;  but  the  distribution  of  executive  functions 
among  different  departments  was  made  by  Congress.  The 
makers  of  the  Constitution,  however,  presumed  that  such 
departments  would  be  established;  for  they  provided, 
through  the  Constitution,  that  the  President  "may  require 
the  opinion  in  writing  of  the  principal  officer  of  each  of  the 
executive  departments  upon  any  subject  relating  to  the  du- 
ties of  their  respective  offices."  In  the  Constitution  the  only 
other  reference  to  the  departments  is  contained  in  the  clause 
which  affirms  that  "the  Congress  may  by  law  vest  the  ap- 


17S      THE   GOVERNMENT   OF  THE   UNITED  STATES 

pointment  of  such  inferior  officers  as  they  may  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments."  There  are  now  nine  executive  depart- 
ments: 

1.  Department  of  State. 

2.  Department  of  the  Treasury. 

3.  Department  of  War. 

4.  Department  of  Justice. 

5.  Post  Office  Department. 

6.  Department  of  the  Navy. 

7.  Department  of  the  Interior. 

8.  Department  of  Agriculture. 

9.  Department  of  Commerce  and  Labor. 

The  heads  of  seven  of  these  departments  are  called  sec- 
retaries. The  head  of  the  Post  Office  Department  is  called 
the  Postmaster-General,  and  the  head  of  the  Department  of 
Justice  is  the  Attorney-General.  The  heads  of  the  several 
departments  constitute  the  President's  Cabinet  or  private 
council.  They  are  his  immediate  advisers  with  reference 
to  executive  affairs,  and  through  them  he  exercises  the  au- 
thority conferred  upon  him  by  the  Constitution.  Unlike 
the  members  of  the  English  Cabinet  they  have  no  vote  in 
the  national  Legislature.  They  are  prevented  from  being 
members  of  Congress  by  the  constitutional  provision  that 
"no  person  holding  any  office  under  the  United  States  shall 
be  a  member  of  either  house  during  his  continuance  in 
office."  They  are  appointed  by  the  President  with  the  con- 
sent of  the  Senate;  but  as  these  officers  hold  a  somewhat 
intimate  personal  relation  to  the  President  and,  in  a  meas- 
ure, act  for  the  President,  the  Senate  seldom,  if  ever, 
refuses  its  approval. 

Topics. — Constitutional  separation  of  powers. — Creation  of 
executive  departments. — Language  of  Constitution  respecting  de- 
partments.— Enumeration    of   executive    departments. — Titles   of 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    179 

heads  of  departments. — The  Cabinet. — Comparison  with  Enghsh 
cabinet. 

References. — Dawes,  How  We  Are  Governed,  204-206;  Fiske, 
Civil  Guvcrnment,  244;  Hinsdale,  American  Government,  284;  Hart, 
Actual  Govcrtunent,  277-279;  Wilson,  Congressional  Government, 
202-293. 

100.  Department  of  State. — Under  the  Articles  of  Con- 
federation the  Congress  created  a  Department  of  Foreign 
Affairs,  which  was  the  immediate  antecedent  of  the  existing 
Department  of  State.  Its  chief  officer  was  called  "The 
Secretary  to  the  United  States  of  America  for  the  Depart- 
ment of  Foreign  Affairs."  The  functions  of  the  Secretary 
of  Foreign  Affairs  were  defined  in  an  act  passed  by  Congress 
before  the  adoption  of  the  Constitution.  After  the  adoption 
of  the  Constitution  Congress  established  a  department  under 
the  same  designation.  The  act  establishing  it  was  approved 
July  27,  1789.  By  an  act  passed  about  six  weeks  later, 
September  15,  1789,  the  name  of  the  department  was 
changed  from  the  "Department  of  Foreign  Affairs"  to  the 
"Department  of  State."  The  duties  of  the  head  of  this 
department  were  outlined  by  the  first  section  of  the  act 
creating  it.  They  were  "such  duties  as  shall  from  time  to 
time  be  enjoined  on  or  intrusted  to  him  by  the  President  of 
the  United  States,  agreeable  to  the  Constitution,  relative  to 
correspondences,  commissions,  or  instructions  to  or  with 
public  ministers  or  consuls  from  the  United  States,  or  to 
negotiations  with  public  ministers  from  foreign  states  or 
princes,  or  to  memorials  or  other  applications  from  foreign 
public  ministers  or  other  foreigners,  or  to  such  other  matters 
respecting  foreign  affairs  as  the  President  of  the  United 
States  shall  assign  to  the  said  department."  Besides  the 
head  of  the  department,  the  law  of  July  27  provided  also 
for  a  chief  clerk,  who,  in  case  the  principal  officer  should  be 
removed  by  the  President,  or  in  any  other  case  of  vacancy, 


180     THE  GOVERNMENT  OF  THE  UNITED  STATES 

should,  during  such  vacancy,  have  the  charge  and  custody 
of  all  records  and  papers  appertaining  to  the  department. 

The  Department  of  State,  the  first  established  and  the 
first  in  rank,  is  the  channel  through  which  pass  all  com- 
munications between  the  Government  of  the  United  States 
and  foreign  governments,  even  though  these  communica- 
tions issue  from  the  President.  The  Secretary  of  State,  the 
head  of  this  department,  is,  according  to  official  etiquette, 
the  only  officer  who  may  communicate  with  the  official  repre- 
sentatives of  foreign  powers,  residing  in  the  United  States, 
respecting  public  affairs.  He  conducts  all  correspondence 
with  the  official  representatives  of  the  United  States  accred- 
ited to  foreign  governments  and  all  correspondence  of  the 
President  with  the  governors  of  States.  He  either  negoti- 
ates treaties  or  has  charge  of  all  treaty  negotiations.  He 
is  the  custodian  of  the  originals  of  all  laws  passed  by  Con- 
gress. He  issues  passports  to  American  citizens  intending 
to  travel  in  foreign  countries.  The  work  of  the  Depart- 
ment of  State  is  distributed  among  several  bureaus:  First, 
the  Diplomatic  Bureau;  second,  the  Consular  Bureau;  third, 
the  Bureau  of  Indexes  and  Archives;  fourth,  the  Bureau  of 
Accounts;  fifth,  the  Bureau  of  Rolls  and  Library;  sixth, 
the  Bureau  of  Statistics;  seventh,  the  Law  Bureau. 

Topics. — Antecedent  of  Department  of  State. — Its  chief  officer 
under  Articles  of  Confederation. — Duties  of  the  head  of  the  depart- 
ment.— Bureaus  of  the  department. 

References. — Dawes,  Hoiv  We  Are  Governed,  206-214;  Fiske, 
Civil  Government,  245;  Hinsdale,  American  Government,  284;  Lalor, 
Cydopcedia,  iii,  787;  Macy,  Our  Government,  14L 

loi.  Department  of  the  Treasury.— The  Department  of 
the  Treasury  was  established  by  an  act  of  Congress,  ap- 
proved September  2,  1789.  The  head  of  the  department  is 
called  the  Secretary  of  the  Treasury.  The  act  establishing 
the  department  provided  for  a  Comptroller,  an  Auditor,  a 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    ISl 

Treasurer,  a  Register,  and  an  Assistant  to  the  Secretary  of 
the  Treasury,  in  addition  to  the  head  of  the  department. 
The  Secretary  of  the  Treasury  prepares  plans  for  the  im- 
provement and  management  of  the  revenue  and  for  the 
support  of  the  pubhc  credit;  reports  estimates  of  the  public 
revenue  and  the  public  expenditures;  superintends  the  col- 
lection of  the  revenue;  prescribes  the  form  of  keeping  and 
stating  public  accounts  and  making  returns;  grants  war- 
rants, under  legal  limitations,  for  money  to  be  issued  from 
the  treasury  in  pursuance  of  appropriations  made  by  law; 
makes  reports  to  either  house  of  Congress  respecting  all 
matters  referred  to  him  by  the  Senate  or  House  of  Repre- 
sentatives or  appertaining  to  his  office.  At  the  present 
time  the  other  officers  of  the  department  and  their  duties 
are  as  follows: 

1.  The  Auditors,  six  in  number,  each  of  whom  receives 
and  audits  a  certain  part  of  the  accounts  of  the  general 
Government. 

2.  The  Comptrollers,  of  whom  there  are  two,  whose  duty 
it  is  to  examine  the  accounts  settled  by  the  Auditors. 

3.  The  Treasurer,  who  receives  and  keeps  the  moneys  of 
the  United  States  and  disburses  the  same  upon  warrants 
drawn  by  the  Secretary  of  the  Treasury,  countersigned  by 
either  Comptroller  and  recorded  by  the  Register,  and  not 
otherwise. 

4.  The  Register,  who  keeps  all  accounts  of  the  receipts 
and  expenditures  of  all  public  money  and  of  all  debts  due 
to  or  from  the  United  States. 

5.  The  Commissioner  of  Customs,  who  examines  accounts 
settled  by  the  First  Auditor  relating  to  the  receipts  from 
customs,  and  exercises  general  control  over  such  receipts. 

6.  The  Commissioner  of  Internal  Revenue,  who,  under 
the  direction  of  the  Secretary  of  the  Treasury,  has  general 
supervision  of  the  assessment  and  collection  of  all  duties  and 
taxes  imposed  by  law,  providing  for  internal  revenue. 


182      THE   GOVERNMENT   OF   THE   UNITED   STATES 

7.  The  Comptroller  of  the  Currency,  who  is  charged  with 
the  execution  of  all  laws  passed  by  Congress  relating  to  the 
issue  and  regulation  of  the  national  currency,  which  is  se- 
cured by  United  States  bonds. 

8.  The  Chief  of  the  Bureau  of  Statistics,  whose  function 
is  to  collect,  arrange,  and  classify  such  statistical  informa- 
tion as  may  be  obtained  for  the  purpose  of  showing  each 
year  the  condition  of  the  manufactures,  domestic  trade, 
currency,  and  banks  of  the  several  States  and  Territories. 

9.  The  Director  of  the  Mint,  who  has  general  control  of 
all  mints  for  the  manufacture  of  coin  and  of  all  assay  offices 
for  the  stamping  of  bars  authorized  by  law. 

Topics.— Establishment  of  the  Department  of  the  Treasury. — 
Work  of  the  Secretary  of  the  Treasury.— Bureaus  in  the  department. 

References. — Bryce,  American  Commonwealth,  i,  86,  88,  175; 
Dawes,  How  We  Are  Governed,  219-224;  Fiske,  Civil  Government, 
247;  Lalor,  Cyclopaedia,  iii,  933;  Hinsdale,  American  Government, 
285. 

102.  Department  of  War. — The  Articles  of  Confedera- 
tion provided  that  no  State  should  keep  any  body  of  forces 
except  such  as  the  Congress  should  deem  to  be  necessary 
for  the  defense  of  the  State,  but  that  every  State  might  keep 
up  a  well-regulated  and  disciplined  militia.  The  central 
Government  under  the  Articles  of  Confederation  had  no 
power  to  organize  and  equip  an  army  of  its  own,  but  must, 
in  case  of  need,  rely  on  each  of  the  several  States  to  furnish 
its  proper  part  of  the  number  fixed  by  Congress.  If  the 
States  had  refused  to  furnish  their  several  quotas,  the  plan 
of  Congress  to  have  an  army  for  offensive  and  defensive 
operations  would,  necessarily,  have  failed.  After  the  ex- 
perience of  the  Revolutionary  War,  this  system  was  gener- 
ally condemned.  It  was  found  to  be  neither  economical 
nor  efficient. 

The    Constitution    created    a    new    system.     While    it 


I 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    1S3 

autJiorized  Congress  "to  raise  and  support  armies,"  it  pro- 
hibited the  appropriation  of  money  to  that  end  for  a  term 
longer  than  two  years.  It  did  for  the  army  what  it  did  for 
the  Executive  and  for  the  central  Government  generally:  it 
provided  a  large  measure  of  independence  and  centralization. 
Under  this  enlarged  authority  of  the  Federal  Government 
Congress  may  not  only  fix,  from  time  to  time,  the  size  of 
the  army,  but  may  also  provide  directly  for  its  support  and 
control.  In  the  exercise  of  its  power  to  determine  the  size 
of  the  army,  Congress  has  at  different  times  made  large 
temporary  additions  to  the  Federal  forces;  and  in  this  power 
lies  the  elasticity  of  the  army,  which  makes  it  possible  to 
adapt  it  to  any  emergenc3^  Following  are  the  occasions  on 
which  the  army  was  temporarily  increased  to  meet  extraor- 
dinary demands:  The  War  of  1812,  the  Mexican  War,  the 
War  of  the  Rebellion,  the  war  with  Spain.  In  the  War  of  the 
Rebellion  the  army  was  expanded  from  a  body  of  a  few 
thousand  to  contain  over  a  million  men. 

In  order  that  an  army  may  be  an  effective  instrument 
of  coercion  and  destruction,  it  is  organized  on  the  principle 
of  absolute  and  immediate  obedience  of  the  inferior  to  the 
superior.  In  this  respect  all  armies  are  alike.  The  army 
of  a  republic  is  like  the  army  of  a  monarchy.  Both  have 
their  distinctly  observed  grades  of  inferiority  and  superiority, 
and  absolutism  characterizes  the  rule  of  both. 

In  1785  the  Continental  Congress  passed  "An  Ordinance 
for  Ascertaining  the  Powers  and  Duties  of  the  Secretary  of 
War,"  This  was  four  years  before  the  adoption  of  the  Con- 
stitution. After  the  Constitution  had  been  adopted.  Con- 
gress passed  an  act  establishing  an  executive  department  to 
be  called  the  "Department  of  War."  The  principal  officer 
in  this  department  is  the  Secretary  of  War,  who  is  required 
by  law  to  conduct  the  business  of  the  department  in  such 
a  manner  as  the  President  shall  from  time  to  time  direct. 
Under  the  President  he  exercises  a  general  control  over  the 


184      THE   GOVERNMENT  OF  THE  UNITED  STATES 

affairs  of  the  army.  The  business  of  the  War  Department 
is  distributed  among  the  following  offices:  Those  of  (1)  Ad- 
jutant General;  (2)  Quartermaster  General;  (3)  Paymaster 
General;  (4)  Commissary  General;  (5)  Surgeon  General; 
(6)  Chief  of  Engineers;  (7)  Chief  of  Ordnance;  (8)  Military 
Justice.  Through  the  Bureau  of  Insular  Affairs,  established 
in  1902,  the  Secretary  of  War  exercises  general  control  over 
the  insular  dependencies. 

Topics. — Military  power  under  the  Articles  of  Confederation. 
— The  system  provided  by  the  Constitution. — Meaning  of  elasticity 
of  the  army. — Character  of  the  army  organization. — Duties  of  the 
Secretary  of  War. — Offices  of  the  department  under  the  Secretary 
of  War. — Bureau  of  Insular  Affairs. 

References. — Bryce,  American  Commonwealth,  i,  86;  Dawes, 
How  We  Are  Governed,  214-218;  Fiske,  Civil  Government,  248; 
Hinsdale,  American  Government,  286;   Lalor,  Cyclopaedia,  iii,  1087. 

103.  Department  of  the  Navy. — Prior  to  1798,  the  naval 
force  of  the  nation  was  unimportant,  and  all  matters  per- 
taining to  it  were  committed  to  the  Department  of  War. 
In  a  speech  to  Congress  made  in  1796,  Washington  affirmed 
that  a  naval  force  was  indispensable  to  protect  external 
commerce  and  that  such  a  force  was  necessary  to  secure 
respect  for  a  neutral  flag,  to  vindicate  it  from  insult  or  ag- 
gression, and  to  guard  it  against  the  depredations  of  nations 
at  war.  A  Department  of  the  Navy  was  established  by 
act  of  Congress,  approved  April  30,  1798,  which  provided, 
"  That  there  shall  be  an  executive  department  under  the  de- 
nomination of  the  Department  of  the  Navy,  the  chief  officer 
of  which  shall  be  called  the  Secretary  of  the  Navy,  whose 
duty  it  shall  be  to  execute  such  orders  as  he  shall  receive 
from  the  President  of  the  United  States,  relative  to  the 
procurement  of  naval  stores  and  materials,  and  the  con- 
struction, armament,  equipment,  and  employment  of  vessels 
of  war,  as  well  as  other  matters  connected  with  the  naval 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    185 

establishment  of  the  United  States."  This  act  repealed  so 
much  of  the  act  establishing  the  Department  of  War  as 
vested  in  that  department  any  power  over  the  navy.  But 
it  was  not  until  1812  that  important  steps  were  taken  to 
organize  and  maintain  a  permanent  naval  force;  and  then 
the  project  was  opposed  by  those  who  held  that  agriculture 
was  the  chief  interest  of  the  country,  and  that  it  would  be 
unwise  to  impose  upon  it  a  burden  of  taxation  to  maintain  a 
navy  to  protect  such  commerce  as  the  nation  had.  At  that 
time  the  navy  had  three  frigates  of  the  first  class  and  seven  of 
the  second  class.  The  frigates  of  the  first  class  were  the  Pres- 
ident, the  United  States  and  the  Constitution.  Two  of  the 
frigates  of  the  second  class  were  entirely  unsea worthy,  and 
the  others  were  in  need  of  extensive  repairs.  The  distin- 
guished achievements  of  the  navy  have  secured  for  it  the 
generous  support  of  the  nation.  The  business  of  the. De- 
partment of  the  Navy  is  distributed  among  several  sub- 
ordinate organizations;  namely,  the  bureaus  of  (1)  Yards 
and  Docks;  (2)  Equipment  and  Recruiting;  (3)  Navigation; 
(4)  Ordnance;  (5)  Construction  and  Repair;  (G)  Steam 
Engineering;  (7)  Provisions  and  Clothing;  (8)  Medicine  and 
Surgery. 

Topics. — Creation  of  Department  of  the  Navy. — Previous  con- 
trol of  naval  affairs. — Original  opposition  to  the  development  of  a 
navy. — Present  attitude  of  the  nation  toward  the  navy. — Bureaus 
of  the  department. 

References. — Bryce,  American  Commonwealth,  i,  GS;  Dawes, 
How  We  Are  Governed,  228-232;  Fiske,  Civil  Government,  248; 
Hinsdale,  American  Government,  287,  288;  Lalor,  Cyclopaedia,  ii, 
993. 

104.  Department  of  Justice. — The   office   of  Attorne}^- 

General  of  the  United  States  was  created  by  Congress  in 

September,  1789,  to  embrace  the  various  law  offices  of  the 

Government,  whose  function  it  was  to  interpret  and  apply 
13 


ISG      THE   GOVERNMENT  OF   THE   UNITED   STATES 

the  laws.  Their  officers — attorneys,  marshals,  reporters 
and  clerks — became  members  of  the  Department  of  Justice 
when  it  was  organized  in  1870.  They  continued  to  inter- 
pret and  apply  the  statutes  governing  the  official  business 
of  the  Government;  but  after  the  organization  of  the  de- 
partment they  acted  under  the  supervision  of  the  Attorney- 
General.  Before  the  creation  of  the  department  they  were 
more  or  less  independent,  and  there  might  readily  appear 
a  considerable  diversity  in  their  construction  and  applica- 
tion of  the  laws.  Bringing  them  under  one  superior  officer 
produced  a  desirable  result  in  making  their  interpretation 
of  the  laws  uniform.  The  Attorney-General  is  a  member  of 
the  Cabinet.  He  advises  the  President  on  questions  of 
law  and  exercises  supervision  over  the  district  attorneys 
and  marshals  of  the  United  States  courts.  He  sometimes 
argues  cases  of  great  importance  before  the  Supreme  Court 
and,  on  rarer  occasions,  before  subordinate  United  States 
courts;  but  the  ordinary  business  of  the  Government  before 
the  courts  is  conducted  by  the  Solicitor-General  and  the 
Assistant  Attorneys-General. 

Topics. — Effect  of  creating  office  of  Attorney-General. — Posi- 
tion and  duties  of  Attorney-General. — Conduct  of  business  before 
Hi"^  United  States  Courts. 

References. — Dawes,  Hoiu  We  Are  Governed,  22i;  Lalor,  Cy- 
tlopcedia,  ii,  6G3;  Hinsdale,  American  Government,  286. 

105.  Post-Office  Department. — When  the  United  States 
became  independent,  the  new  Government  inherited  the 
postal  system  that  had  been  established  in  the  colonies  by 
the  English  Government.  Under  the  necessities  of  an  in- 
creasing population  and  the  increasing  need  of  communica- 
tion over  a  vastly  extended  territory,  this  system  has  grown 
to  its  present  size.  At  its  head  stands  the  Postmaster- 
General,  aided  by  four  Assistant  Postmasters-General,  all 
of  whom  are  appointed  by  the  President.     The  business  of 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    187 

the  department  is  carried  on  by  a  large  number  of  clerks, 
postmasters,  and  letter  carriers. 

The  Postmaster-General  manages  the  general  affairs  of 
the  department,  including  the  foreign  and  domestic  mail 
service.  He  can  establish  post  offices,  and  has  power  to 
appoint  the  postmasters  whose  salaries  are  severally  less 
than  $1,000.  These  are  postmasters  of  the  fourth  and  fifth 
classes,  and  comprise  about  six-sevenths  of  the  whole  num- 
ber, or  about  60,000.  The  other  seventh  constitutes  the 
first,  second,  and  third  classes  and  are  appointed  by  the 
President.  Hitherto  the  postmasters  have  been  appointed 
without  reference  to  the  Civil  Service  act.  It  is,  however, 
the  desire  of  the  advocates  of  the  Merit  System  to  have  the 
Civil  Service  act  applied  to  this  department.  It  has  not 
been  the  policy  of  the  Government  to  derive  a  revenue  from 
the  postal  department,  but  to  reduce  the  rates  of  postage 
whenever  the  income  of  the  department  would  justify  it. 

Topics. — Antecedents  of  this  department. — Head  of  the  de- 
partment.— Chief  subordinates. — Duties  of  the  Postmaster-General. 
— Appointment  of  postmasters. — Post  office  and  the  Civil  Service 
act. 

References. — Dawes,  How  We  Are  Governed,  226-228;  Fiske, 
Civil  Government,  248;  Hinsdale,  American  Government,  287;  Lalor, 
Cyclopaedia,  iii,  310. 

io6.  Department  of  the  Interior. — For  more  than  half 
a  century  after  the  organization  of  the  Federal  Government, 
the  work  now  performed  under  the  direction  of  the  Depart- 
ment of  the  Interior  was  distributed  among  the  Depart- 
ments of  State,  the  Treasury,  War,  and  the  Navy.  By  an 
act  approved  March  3,  1849,  the  Department  of  the  Interior 
was  established.  It  was  designated  in  the  law,  the  Home 
Department;  but  the  chief  officer  was  called  the  Secretary  of 
the  Interior.  As  at  present  organized  this  department 
covers  a  large  range  of  diverse  affairs  that  have  been  trans- 


188      THE   GOVERNMENT   OF  THE   UNITED  STATES 

ferred  to  it  from  other  departments.  Patents,  Copyrights, 
the  Census,  and  Public  Documents  were  transferred  to  it 
from  the  Department  of  State;  the  Administration  of  Public 
Lands,  Mines  and  Mining,  and  Judicial  Accounts  from  the 
Treasury  Department;  Indian  Affairs  from  the  War  Depart- 
ment; and  Pensions  from  the  War  and  Navy  departments. 
In  addition  to  these,  several  other  important  interests  have 
been  brought  under  the  jurisdiction  of  the  Secretary  of  the 
Interior,  among  which  are  Education,  Pacific  Railways, 
Public  Surveys,  and  the  Territories. 

Topics. — Organization  of  the  Department  of  the  Interior. — 
Previous  control  of  the  work  assigned  to  it. — Field  now  occupied 
by  it. 

References. — Dawes,  How  We  Are  Governed,  232-242;  Hins- 
dale, American  Government,  288;  Lalor,  Cyclopcedia,  ii,  567;  Willough- 
by.  Rights  and  Duties,  224-234. 

107.  Department  of  Agriculture. — In  1862,  a  so-called 
Department  of  Agriculture  was  organized.  It  was,  however, 
not  a  department  in  the  sense  attributed  to  that  term  when 
applied  to  the  organization  under  the  direction  of  the  Sec- 
retary of  War.  Like  the  so-called  Department  of  Educa- 
tion, in  its  original  form  it  was  an  unassigned  bureau.  The 
object  of  the  organization,  as  defined  in  the  law  creating  it, 
was  "  to  diffuse  among  the  people  of  the  United  States  useful 
information  on  subjects  connected  with  agriculture  in  the 
most  general  and  comprehensive  sense  of  that  term,  and  to 
procure,  propagate,  and  distribute  among  the  people  new 
and  valuable  seeds  and  plants."  The  head  of  this  bureau 
was  called  the  Commissioner  of  Agriculture.  In  the  course 
of  time,  in  view  of  the  increasing  importance  of  the  agri- 
cultural interests  of  the  country,  it  was  determined,  without 
materially  changing  its  functions,  to  raise  this  bureau  to 
the  dignity  of  an  executive  department  and  to  give  the 
chief  of  the  bureau  the  title  of  Secretary  of  Agriculture.     He 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    189 

was  at  the  same  time  made  a  member  of  the  President's 
Cabinet.     This  was  done  in  1889. 

Topics. — Organization  of  the  Department  of  Agriculture. — 
Nature  of  the  department  at  first. — Object  as  defined  by  law. — 
Title  and  jaosition  of  the  head  of  the  department  at  first  and  later. 

References. — Dawes,  How  TFe  Are  Governed,  243;  Hinsdale, 
American  Government,  288;   Willoughby,  Rights  and  Duties,  236. 

io8.  Department  of  Commerce  and  Labor. — By  an  act 
approved  February  14,  1903,  there  was  established  a  Depart- 
ment of  Commerce  and  Labor.  With  respect  to  appoint- 
ment, salary,  and  tenure  of  office  the  secretary  of  this  de- 
partment is  placed  under  the  same  regulations  as  the  heads 
of  the  other  executive  departments.  It  was  made  the  duty 
and  province  of  this  department  "to  foster,  promote,  and 
develop  the  foreign  and  domestic  commerce,  the  mining, 
manufacturing,  shipping  and  fishery  industries,  the  labor 
interests,  and  the  transportation  facilities  of  the  United 
States."  Several  bureaus  and  offices  previously  under  the 
jurisdiction  of  the  Treasury  Department  were  transferred 
to  the  Department  of  Commerce  and  Labor.  These  were 
the  Light-House  Board,  the  Light-House  Establishment, 
the  Steamboat  Inspection  Service,  the  Bureau  of  Navix 
gation,  the  United  States  Shipping  Commissioners,  the 
National  Bureau  of  Standards,  the  Coast  and  Geodetic  Sur- 
vey, the  Commissioners  General  of  Immigration  and  the 
immigration  service  at  large,  and  the  Bureau  of  Statistics. 
The  Census  Office  was  transferred  to  this  department  from 
the  Department  of  the  Interior.  The  jurisdiction  of  this 
department  was,  moreover,  extended  over  the  Department 
of  Labor,  the  Fish  Commission,  and  the  office  of  Commis- 
sioner of  Fish  and  Fisheries.  The  Bureau  of  Foreign  Com- 
merce, hitherto  in  the  Department  of  State,  was  also  trans- 
ferred to  the  Department  of  Commerce  and  Labor,  and 
made  a  part  of  the  Bureau  of  Statistics.    Two  other  bureaus 


190      THE   GOVERNMENT  OF  THE  UNITED  STATES 

were  created  and  placed  under  the  jurisdiction  of  the 
Department  of  Commerce  and  Labor.  These  were  a  Bureau 
of  Manufactures  and  a  Bureau  of  Corporations.  The  juris- 
diction, supervision,  and  control  previously  possessed  and 
exercised  by  the  Department  of  the  Treasury  over  the  fur- 
seal,  salmon,  and  other  fisheries  of  Alaska,  and  over  the 
immigration  of  aliens  into  the  United  States,  belongs  now 
to  the  Department  of  Commerce  and  Labor.  The  various 
functions  and  duties  of  this  department  and  its  subordinate 
offices  and  bureaus  are  set  forth  in  the  act  of  foundation, 
called  "An  Act  to  establish  the  Department  of  Commerce 
and  Labor." 

Topics. — Department  of  Commerce  and  Labor,  established 
1903. — Duty  and  province  of  this  department. — Bureaus  transferred 
from  the  Treasury  Department. — Fisheries. 

References. — Fiske,  Civil  Governmmt,  250,  25L 

109.  The  Cabinet. — The  heads  of  the  several  depart- 
ments constitute  what  is  known  as  the  President's  Cabinet. 
It  is  appointed  by  him  and  is  responsible  to  him  alone;  yet 
as  such  this  body  has  no  constitutional  or  legal  recognition. 
The  Constitution  affirms  that  the  President  "may  require 
the  opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments  upon  any  subject  relating  to  the 
duties  of  their  respective  offices."  In  this  lack  of  legal 
recognition  the  President's  Cabinet  is  like  the  English 
Cabinet,  but  it  is  unlike  it  in  every  other  respect.  The 
members  of  the  President's  Cabinet  may  not  be  members 
of  Congress;  while  the  English  Cabinet  is,  in  effect,  a  com- 
mittee of  Parliament.  The  English  Cabinet  resigns  if 
censured  by  a  vote  of  Parliament,  but  the  votes  of  Congress 
have  no  influence  on  the  tenure  of  the  American  Cabinet. 
Action  by  the  President  on  the  advice  of  his  Cabinet  is  held 
to  be  the  President's  action,  and  he  alone  is  responsible. 
Action  by  the  Crown  on  the  advice  of  the  English  Cabinet  is 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    191 

held  to  be  the  Cabinet's  action,  and  it  alone  is  responsible, 
A  member  of  the  President's  Cabinet  has  two  conspicuous 
classes  of  duties:  he  is  expected  to  know  and  direct  the 
affairs  of  his  department,  and  to  advise  the  President, 
first,  respecting  all  matters  that  lie  within  his  administra- 
tive jurisdiction,  and,  second,  respecting  all  matters  of  a 
general  nature  in  which  the  executive  branch  of  the  Govern- 
ment is  interested. 

Topics. — Members  of  the  Cabinet. — In  what  respects  like  the 
English  Cabinet. — Relation  of  the  President  to  his  Cabinet. — Duties 
of  members  of  the  Cabinet. 

References. — Bryce,  American  Commonwealth,  i,  86;  ii,  157; 
Dawes,  How  We  Are  Governed,  205,  243-246;  Fiskc,  Civil  Govern- 
ment, 244;  Goodnow,  Comparative  Adminidrativc  Law,  i,  134; 
Hinsdale,  American  Government,  289. 

no.  Independence  of  the  Executive. — Under  the  Eng- 
lish system  the  practical  executive  is  directly  responsible 
to  the  Parliament.  If  the  Parliament  persistently  opposes 
a  measure  urged  by  the  Cabinet  under  the  leadership  of 
the  Prime  Minister,  the  Prime  Minister  and  his  Cabinet 
must  resign;  and  another  Prime  Minister  will  be  named 
and  asked  to  form  a  new  Cabinet,  which  must  conform  to 
the  opinions  of  the  majority  of  the  Parliament.  In  the 
United  States,  if  the  majority  of  the  Congress  opposes 
the  President,  it  does  not  in  any  way  affect  his  tenure  of 
office  or  that  of  his  Cabinet.  There  may  be  a  difference  of 
opinion  between  the  President  and  Congress  concerning  the 
desirability  of  a  proposed  law.  If  the  President  is  opposed 
to  the  bill,  he  may  veto  it.  By  this  the  opposition  becomes 
open  and  declared.  If  it  is  not  possible  for  the  Congress  to 
rally  at  least  two-thirds  of  each  house  in  support  of  the  bill, 
this  incident  is  closed  by  the  veto,  and  the  President  wins 
in  the  contest.  If  two-thirds  of  each  house  come  to  the 
support  of  the  vetoed  bill  and  vote  for  it,  the  incident  is 


192      THE   GOVERNMENT   OF  THE  UNITED  STATES 

closed;  and  in  this  case  the  Congress  wins  in  the  contest. 
But  whichever  way  the  contest  is  closed,  neither  party  is 
affected  in  his  position.  Neither  resigns,  and  both  enter 
upon  the  consideration  of  the  next  measure  with  the  same 
independence  as  before.  This  independence  of  the  Execu- 
tive constitutes  a  check  on  complete  party  government. 
In  England,  where  a  Cabinet  must  be  in  complete  harmony 
with  the  majority  of  the  Commons,  this  check  does  not 
exist.  Party  government,  as  it  is  understood  in  Europe, 
does  not  prevail  in  the  United  States.  The  aim  of  the 
United  States  has  been,  through  the  use  of  various  checks 
and  limitations,  to  make  the  Government  express  the  per- 
manent will  of  the  nation  rather  than  its  occasional  will. 

Topics. — Effect  of  Disposition  in  England  between  Cabinet  and 
Parliament. — Opposition  of  Congress  to  the  President. — Executive 
independence  in  the  United  States. — Check  to  complete  party  gov- 
ernment. 

References. — Hinsdale,  American  Government,  289-291;  Good- 
now,  Comparative  Administrative  Law,  i,  10. 


FOR  ADVANCED  STUDY 

The  Presidency.— Burgess,  Political  Science,  ii,  216-263,  307- 
319;  Bryce,  America7i  Commonwealth,  i.  Chaps.  V-IX;  Ford, 
American  Politics,  Chap.  XXII;  Lockwood,  Abolition  of  the  Presi- 
dency; Cooley,  Constitutionnl  Law,  Chaj).  V;  Goodnow,  Compara- 
tive  Administrative  Law,  i,  59-82,  102-106,  127-138,  146-161;  ii,  29- 
46;  H.  von  Hoist,  Constitutional  Law,  §§  25,  26,  55,  59,  60;  Jennings, 
Eighty  Years  of  Republican  Government,  Chaps.  Ill,  IV;  Lalor, 
Cyclopaedia,  articles  on  Confirmation,  Electoral  College,  Electoral  Com- 
mission, Executive  Impeachment,  Removals,  Resignations,  Veto; 
Mason,  Veto  Power;  Tucker,  Constitution,  Chap.  XII. 

The  National  Convention. — Dallinger,  Nominations  for 
Elective  Office,  1-50,  74—94;  Official  Proceedings  of  the  National 
Conventions. 


POWERS  AND  DUTIES  OF  THE  FEDERAL  EXECUTIVE    193 

The  Election  of  the  President.— Stanwood,  History  of 
Presidential  Elections;  Hart,  Practical  Essays,  No.  Ill  ;  Bryce, 
American  Commonwealth,  i,  Chap.  VIII. 

The  Powers  of  the  President.— Conkling,  Powers  of  the 
Executive  Department;  Harrison,  This  Country  of  Ours,  Chap.  IV- 
XIX;  Hart,  Practical  Essays,  No.  IV;  Lockwood,  Abolition  of  the 
Presidency;  Mason,  Veto  Power;  Sahnon,  Appointing  Power;  Whi- 
ting, War  Powers,  66-83,  159-325;  Richardson,  Messages  of  the 
Presidents. 

President  Johnson's  Conflict  with  Congress  and  His 
Impeachment. — Blaine,  Twenty  Years  of  Congress,  ii,  1-15, 56-154; 
Lathrop,  Seward,  404-418;  Storey,  Charles  Sunmcr,  290-301,  346- 
351;  Burgess,  Reconstruction,  31-61,  142,  143,  157-194;  Hart,  Con- 
temporaries, iv,  468-475,  479-481,  489-492;  Hart,  Chase,  357-361; 
McCuUoch,  Men  and  Measures  of  Half  a  Century,  Chap.  XXVI; 
Blaine,  Twenty  Years  of  Congress,  ii,  Cliap.  XIV. 

The  Heads  of  the  Executive  Departments. — Jameson, 
Essays  in  Constitutional  History,  116-185;  Harrison,  This  Country 
of  Ours,  Chaps.  VI,  XI-XVIII;  Bryce,  American  Commonwealth,  \, 
Chaps.  IX,  XXV;  Lowell,  Essays  on  Government,  No.  1;  F.  Snow, 
Defense  of  Congressional  Government  (American  Historical  Associa- 
tion, Papers),  iv,  309-328;  American  Academy  of  Political  Science, 
Annals,  iii,  1-13;  Ainerican  Law  Review,  XXIII;  Ford,  American 
Politics,  383-396;  Yale  Law  Journal,  vii,  1-19;  Burgess,  Political 
Science,  ii,  262,  263,  311-316. 

Officers  of  the  Civil  Service  and  their  Appointment.— 

Fiske,  Civil  Government,  27.5-279;  Salmon,  Appointing  Power; 
American  Historical  Association,  Report  for  1899,  i,  67-86;  Lodge, 
Historical  and  Political  Essays,  114—137;  Senate  Reports,  50th  Con- 
gress, 1  Session,  No.  507;  House  Reports,  53d  Congress,  1  Session, 
No.  11;  Messages  of  the  Presidents;  American  Historical  Review,  i, 
270-283;  ii,  241-261;  iii,  270-291. 

Treaty  with  Texas  for  Annexation.^I.  von  Hoist,  Cnl- 
hnun,  222-245;  H.  von  Hoist,  United  States,  ii,  602-657,  673-677;' 
Schoulcr,  United  States,  iv,  440-451,  457-459,  470;  Burgess,  Middle 
Period,  302-308;  Wilson,  Division,  144,  145;  Schurz,  Clay,  ii,  235- 


194      THE   GOVERNMENT  OF  THE   UNITED  STATES 

241;  Beaton,  Thirty  Years'  View,  ii,  Chaps.  CXXXV,  CXXXVllI- 
CXLll. 

Political  Aspect  of  the  Texas  Question. — Wilson,  Division, 
145,  146;  Schouler,  United  States,  iv,  460,  461,  465-469,  471-474; 
H.  von  Hoist,  United  States,  ii,  657-673;  Shepard,  Martin  Van 
Burcn,  344-354;  Johnston,  American  Politics,  145,  146;  Hart,  Con- 
temporaries, iii,  649-652;  MacDonald,  Select  Documents,  343-346; 
H.  von  Hoist,  United  States,  ii,  677-712;  H.  von  Hoist,  CalhouJi, 
251-256;  Burgess,  Middle  Period,  308-310,  318-323;  Schouler, 
United  States,  iv,  482-488;  Benton,  Thirty  Years'  View,  ii,  Chaps. 
CXLVII,  CXLVIII. 

The  Introduction  of  the  Merit  System  into  the  Civil 
Service.— Political  Science  Quarterly,  iii,  247-281;  XIV,  240-250; 
Mason,  Veto  Power,  §§25-28;  American  Historical  Association, 
Papers,  ii,  47-52;  Bryce,  American  Commonwealth,  ii.  Chap.  LXV; 
Municipal  Affairs,  iv,  708-720;  Goodnow,  Comparative  Administra- 
tive Law,  ii,  34-46;  Eaton,  Government  of  Municipalities,  Chaps. 
VII,  VIII;  Lodge,  Historical  and  Political  Essays,  114-137;  Curtis, 
Orations  and  Addresses,  ii,  477-508;  Hart,  Practical  Essays,  No. 
IV;  National  Civil  Service  Reform  League,  Proceedings;  United 
States  Civil  Service  Commission,  Annual  Report;  New  York  Civil 
Service  Commission,  Annual  Report;  Atlantic  Monthly,  LXVII, 
252-257;  LXXV,  239-246;  Hart,  Contemporaries,  iii,  §  158;  iv,  §§ 
197,  199,  202. 


CHAPTER  VII 

THE   FEDERAL   COURTS 

III.  Need  of  Federal  Courts. — Under  the  Articles  of 
Confederation  tlie  central  power  could  not  deal  directly 
with  the  individual  citizen;  it  could  deal  with  him  only- 
through  the  government  of  the  State  to  which  he  belonged. 
Under  the  Constitution  the  Federal  Government  holds  im- 
mediate relations  with  the  individual  citizen;  its  laws  apply 
to  him,  and  the  authority  of  its  administrative  officers 
reaches  him  directly.  In  the  new  position  assumed  by  the 
Federal  Government  under  the  Constitution  there  were  the 
following  needs  for  Federal  courts: 

1.  The  laws  passed  by  Congress  bind  directly  the  in- 
dividual citizen  in  whatever  State  or  Territory  he  may  live, 
and  Federal  courts  are  needed  to  interpret  and  apj^ly  these 
laws. 

2.  The  Constitution  having  been  established  as  the 
supreme  law  of  the  land,  Federal  courts  are  needed  as  an 
authority  to  which  appeal  may  be  made  to  determine  the 
harmony  or  conflict  between  the  Constitution  and  the  laws 
passed  by  Congress  or  by  the  several  States,  and  thus  to 
provide  for  maintaining  the  supremacy  of  the  Constitution. 

3.  Federal  courts  are  needed  to  decide  such  questions  as 
in  their  nature  may  not  properly  be  brought  under  the 
authority  of  State  courts. 

The  system  of  United  States  courts  covers  the  same 
territory  as  the  whole  body  of  State  courts;   and  as  ever}^ 

195 


196       THE  GOVERNMENT  OF  THE  UNITED    STATES 

citizen  is  at  the  same  time  directly  under  Federal  laws  and 
State  laws,  so  is  he  directly  subject  to  Federal  courts  and 
State  courts.  He  is  brought  before  the  Federal  courts  for 
the  violation  of  Federal  laws  and  before  the  State  courts  for 
the  violation  of  State  laws.  In  the  organization  of  the 
Federal  courts  the  United  States  Marshal  corresponds  to 
the  sheriff  in  the  State  courts.  It  is  his  duty  to  carry  out 
the  writs,  judgments,  and  orders  of  the  court.  In  every 
judiciary  district  there  is  not  only  a  marshal  but  also  a  clerk 
of  the  court  for  the  Federal  court  and  a  public  prosecutor 
who  is  called  the  United  States  District-Attorney.  All 
officers  of  these  courts  are  subordinated  to  the  Attorney- 
General. 

Topics. — The  Federal  Government's  relation  to  the  individual 
citizen. — Need  of  Federal  courts. — Territory  covered  by  United 
States  courts. — The  United  States  Marshal. — Duty  of  the  marshal. 
— Other  officers. 

References. — Bryce,  American  Commonwealth,  i,  35,  225,  241 ; 
Dawes,  How  We  Are  Governed,  252-256 ;  Fiske,  Civil  Government,  260 ; 
Hinsdale,  American  Government,  292;  Lalor,  Cyclopaedia,  u,  647; 
Miller,  Lectures,  ?,10-315. 

112.  Scope  of  Federal  Courts.— The  Supreme  Court  was 
created  by  the  Constitution,  and  Congress  was  empowered 
to  establish  other  courts.  All  the  United  States  courts 
except  the  Supreme  Court  were  created  by  Congress.  That 
part  of  the  judicial  power  of  the  United  States  which 
has  not  been  given  to  the  Federal  courts  remains  with  the 
States.  The  power  of  the  State  courts  is,  therefore,  all 
judicial  power  that  has  not  been  conferred  upon  the  Federal 
courts,  just  as  the  power  of  the  State  legislatures  is  all  legis- 
lative power  that  has  not  been  conferred  upon  Congress. 
Every  case  that  cannot  be  definitely  shown  to  belong  to  a 
Federal  court  falls  within  the  jurisdiction  of  a  State  court. 

The  scope  of  the  Federal  courts  is  indicated  by  an 


THE  FEDERAL  COURTS  197 

enumeration  and  consideration  of  the  cases  which,  in  accord- 
ance with  law,  fall  under  the  jurisdiction  of  these  courts: 

1.  All  cases  in  law  and  equity  arising  under  the  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made 
under  the  authority  of  the  United  States. 

2.  All  cases  affecting  ambassadors,  other  public  minis- 
ters, and  consuls. 

3.  All  cases  of  admiralty  and  maritime  jurisdiction. 

4.  Controversies  to  which  the  United  States  shall  be 
a  party. 

5.  Controversies  between  two  or  more  States;  between 
citizens  of  different  States;  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States;  and 
between  a  State  or  the  citizens  thereof  and  foreign  States, 
citizens,  or  subjects. 

The  eleventh  amendment  abrogated  the  possibility  of 
cases  "between  a  State  and  citizens  of  another  State/'  as 
originally  provided  in  the  second  section  of  the  third  article 
of  the  Constitution.  The  language  of  this  amendment  is 
that  "the  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
state." 

Topics. — Origin  of  United  States  courts. — Power  of  the  State 
courts. — What  cases  belong  to  State  courts. — ^\Tlat  cases  belong 
to  Federal  courts. — Tlic  eleventh  amendment. 

References. — Dawes,  How  We  Are  Governed,  2G1,  269-275; 
Fiske,  Civil  Government,  2G0-262;  Hinsdale,  American  Government, 
297-302;  Miller,  Ledwres,  320-337. 

113.  The  Supreme  Court. — Although  the  Constitution 
created  the  Supreme  Court,  it  did  not  fix  the  number  of 
judges.  This  number  is  determined  by  Congress.  At 
present  there  arc  nine,  of  whom  one  is  the  Chief  Justice  and 


198       THE  GOVERNMENT  OF   THE  UNITED  STATES 

eight  are  Associate  Justices.  They  are  appointed  by  the 
President  and  confirmed  by  the  Senate.  They  hold  office 
for  Hfe  or  during  good  behavior.  The  fact  that  they  cannot 
be  removed  except  by  impeachment  is  thought  to  give  them 
independence  and  place  them  beyond  the  reach  of  unworthy 
influences.  The  Supreme  Court  sits  in  Washington,  its 
regular  annual  session  extending  from  October  till  July. 

Some  cases  may  be  brought  to  the  Supreme  Court  with- 
out having  been  before  any  other  court.  There  are  two 
classes  of  such  cases.  In  the  first  class  are  those  cases  which 
"affect  ambassadors,  other  public  ministers,  and  consuls"; 
in  the  second  class,  those  in  which  the  State  is  a  party.  In 
these  cases  the  Supreme  Court  is  said  to  have  original  juris- 
diction. 

Some  cases  are  brought  to  the  Supreme  Court  after  they 
have  been  tried  in  a  lower  court.  Such  cases  are  appealed 
to  the  Supreme  Court;  and  in  these  cases  the  Supreme 
Court  is  said  to  have  appellate  jurisdiction.  All  cases  that 
may  be  appealed  from  a  lower  court  to  the  Supreme  Court, 
with  few  exceptions,  must  involve  an  amount  exceeding 
$5,000.  The  exceptions  are  such  cases  as  may  be  appealed 
from  the  circuits  to  the  Supreme  Court  without  regard  to 
the  value  of  the  controversy.^ 

The  Supreme  Court  holds  appellate  jurisdiction  over  the 
Court  of  Claims  which  was  instituted  in  1855  with  three 
judges  to  determine  all  cases  against  the  United  States. 
Since  1863  this  court  has  been  composed  of  five  judges. 
Cases  may  be  appealed  to  the  Supreme  Court  also  from  the 

^  Formerly  an  appeal  from  the  district  courts  directly  to  the  Su- 
preme Court  occurred  in  general  only  when  the  district  courts  exercised 
circuit  court  powers.  In  all  other  cases,  with  the  exception  of  prize 
cases,  there  was  an  appeal  from  the  district  court  to  the  circuit  court. 
The  Judiciary  act  of  March  3,  1891,  abolished  the  appellate  jurisdiction 
from  the  district  to  the  circuit  court  in  all  cases  and  established  the 
Circuit  Court  of  Appeals.     (See  §  116.) 


THE  FEDERAL  COURTS  199 

courts  of  the  Territories  of  the  United  States,  from  the 
supreme  court  of  the  District  of  Columbia,  from  the  State 
courts,  and  from  the  supreme  court  of  the  Philippine 
Islands. 

During  the  annual  term  of  the  Supreme  Court,  sessions 
are  usually  held  on  Monday,  Tuesday,  Wednesday,  Thurs- 
day, and  Friday.  The  hours  of  the  session  are  from  twelve 
to  four  o'clock,  and  the  place  of  meeting  is  in  the  capitol 
building  at  Washington. 

The  justices  meet  on  Saturday  morning  to  consider  and 
decide  the  cases  that  have  been  argued  before  them  during 
the  week.  If  the  justices  are  agreed  on  a  decision,  the  prep- 
aration of  a  written  opinion  is  assigned  to  some  member 
of  the  court.  It  sometimes  happens  in  important  cases 
that  no  complete  agreement  is  reached.  In  such  cases  an 
opinion  of  the  court  approved  by  a  majority  of  the  justices 
is  issued,  and  also  a  dissenting  opinion  signed  by  the  mi- 
nority. There  have  been  cases  in  which  each  justice  has 
delivered  an  individual  opinion. 

Topics. — Number  of  Supreme  Court  jud,£^es. — Appointment 
and  term  of  office. — Original  jurisdiction  of  Supreme  Court. — 
Appellate  jurisdiction. — Time  and  place  of  sessions. — Time  and 
mode  of  rendering  decisions. 

References. — Bryce,  American  Commonwealth,  i,  229;  262-265; 
Hinsdale,  American  Government,  293-302;  Hart,  Actual  Govern- 
ment, 301,  302;  ^Tiller,  Lectures,  337-340,  344-3.50,  374-418. 

114.  The  District  Courts. — The  territory  comprised  in 
the  States  of  the  Union  is  divided  into  a  number  of  districts 
for  judiciary  purposes.  At  the  beginning  of  the  twentieth 
century  there  were  sixty-five  districts.  Their  boundaries 
follow  the  boundaries  of  the  States  except  in  cases  where  a 
State  is  divided  into  two  or  more  districts.  ]\Iany  States 
constitute  each  one  district.  Tliis  is  true  of  Massachusetts, 
Rhode  Island,  New  Hampshire,  Vermont,  Maine,  Connecti- 


200       THE  GOVERNMENT  OF  THE  UNITED  STATES 

cut,  West  Virginia,  and  some  of  the  other  States,  New 
York  is  divided  into  three  districts,  as  are  also  Alabama  and 
Tennessee.  In  each  district  there  is  a  district  judge,  who 
is  required  to  reside  in  his  district  and  to  hold  there  an- 
nually at  least  two  terms  of  court.  In  case  of  the  disability 
of  the  district  judge,  the  circuit  judge  within  whose  terri- 
tory the  district  lies  may  hold  court  for  him.  The  jurisdic- 
tion of  the  district  courts  is  wholly  original,  since  the  dis- 
trict courts  are  the  lowest  in  the  series  of  Federal  courts. 
They  hear  both  civil  and  criminal  cases. 

A  district  court  may  be  held  in  and  for  the  District  of 
Columbia.  This  may  be  held  by  the  Chief  Justice  of  the 
supreme  court  of  the  District  of  Columbia  or  by  any  one  of 
the  five  associate  justices  of  that  court.  The  district  court 
for  the  District  of  Columbia  exercises  the  same  powers  and 
jiu'isdiction  as  are  exercised  by  any  other  district  court; 
and  appeals  are  taken  from  it  to  the  Circuit  Court  of 
Appeals,  as  in  the  case  of  other  district  courts. 

Topics. — Number  of  district  courts. — Boundaries  of  the  dis- 
tricts.— Terms  of  district  courts. — Jurisdiction  of  district  courts. — 
District  court  of  the  District  of  Columbia. 

References. — Bryce,  American  Commonwealth,  i,  231;  Dawes, 
How  We  Are  Governed,  265,  2GG;  Fiske,  Civil  Government^  260; 
Hinsdale,  American  Government,  294-304;  Hart,  Actual  Government, 
303. 

115.  The  Circuit  Courts. — The  territory  of  the  States  of 
the  Union  is  divided  into  nine  circuits,  corresponding  with 
the  number  of  justices  of  the  Supreme  Court,  one  of  whom 
is  allotted  to  each  circuit.  For  each  circuit  the  President, 
with  the  advice  and  consent  of  the  Senate,  appoints  a  cir- 
cuit judge  who  is  required  to  reside  in  his  circuit.  Circuit 
courts  are  held  by  the  circuit  judge  and  by  the  district 
judge  and  by  the  justice  of  the  Supreme  Court  allotted 
to  the  circuit,  each  sitting  alone,  or  by  any  two  of  these 


THE  FEDERAL  COURTS  201 

judges  sitting  together.  The  justice  of  tlie  Supreme  Court 
presides  when  present.  The  district  judge  may  hold  a 
circuit  court  only  within  his  district. 

Topics. — Number  of  circuits. — Method  of  holding  circuit  court. 
The  three  judges  involved. — llcstrictions  on  the  district  judge. — 
Terms  of  circuit  courts. 

References. — Bryce,  American  Commonwealth,  i,  231;  Dawes, 
How  We  Are  Governed,  265,  2G6;  Hinsdale,  American  Government, 
295-303;  Hart,  Actual  Government,  303;  Macy,  Our  Government, 
109-112. 

ii6.  The  Circuit  Court  of  Appeals. — The  Circuit  Court 
of  Appeals  was  created  by  an  act  of  Congress  approved 
March  3,  1891.  "Its  primary  purpose  was  to  facilitate  the 
prompt  disposition  of  causes  in  the  United  States  Supreme 
Court  by  relieving  that  court  of  the  overburden  of  business 
resulting  from  the  rapid  growth  of  the  country  and  the  con- 
sequent steady  increase  of  litigation."  The  act  establishing 
this  court  provided  for  the  appointment  of  an  additional 
circuit  judge  for  each  of  the  nine  circuits,  and  these  judges 
were  given  the  same  power  and  jurisdiction  as  the  United 
States  circuit  judges.  The  Circuit  Court  of  Appeals  con- 
sists of  three  judges  taken  from  the  judges  competent  to 
sit  as  judges  in  this  court.  These  are  the  Chief  Justice  and 
Associate  Justices  of  the  Supreme  Court  assigned  to  each 
circuit,  and  the  circuit  judges  within  each  circuit,  and  the 
several  district  judges  within  each  circuit.  This  court  tries 
only  cases  that  are  appealed  to  it  from  some  other  court. 
These  cases  are  such  as  are  brought  to  it  by  writ  of  error  or 
appeal  from  the  district  and  circuit  courts.  United  States 
courts  in  the  Indian  Territory,  and  the  supreme  courts  of 
the  several  Territories. 

These  four  distinct  grades  of  courts  involve  only  the 

three    classes    of    judges — supreme,    circuit,    and    district 

judges. 

14 


202       THE   GOVERNMENT  OF  THE  UNITED  STATES 

Topics. — Establishment  of  the  Circuit  Court  of  Appeals. — • 
Purpose  of  the  court. — Judges. — The  cases  that  may  be  tried  by 
this  court. 

References. — Hinsdale,  American  Government,  303;  Hart, 
Actual  Government,  303;  Macy,  Our  Government,  112. 

117.  The  Court  of  Claims. — It' is  a  generally  adopted 
principle  that  no  sovereign  government  can  be  arraigned 
before  any  tribunal  without  its  own  consent.  At  the  same 
time  it  is  held  by  the  more  thoroughly  civilized  states  that 
their  "ordinary  tribunals  shall  decide  all  causes  in  which 
the  sovereign  is  a  party  with  as  much  freedom  as  those  be- 
tween private  persons."  It  was  in  recognition  of  this  prin- 
ciple that  the  makers  of  the  Constitution  in  defining  the 
scope  of  the  judiciary  powers  of  the  United  States  provided 
that  it  should  extend  even  "  to  controversies  to  which  the 
United  States  shall  be  a  party."  It  was  not,  however,  until 
1855  that  a  court  was  created  before  which  cases  of  this  kind 
could  be  brought;  but  in  that  year  the  Court  of  Claims  w^as 
organized  under  an  act  of  Congress  approved  February  24. 
At  first  this  court  consisted  of  a  chief  justice  and  two  judges; 
but  an  act  of  Congress  approved  March  3,  1863,  increased 
the  number,  making  the  court  consist  of  one  chief  justice 
and  four  judges.  These  are  appointed,  like  the  other 
Federal  judges,  by  the  President  with  the  advice  and  consent 
of  the  Senate,  and  hold  their  office  during  good  behavior. 
Before  the  establishment  of  this  court,  relief  of  the  kind  here 
provided  for  had  to  be  sought  directly  from  Congress;  and 
for  some  time  after  the  court  was  organized,  its  judgments 
were  required  to  be  transmitted  to  Congress  to  be  finally 
acted  upor4"  Persons  having  claims  against  the  United 
States  found  in  this  procedure  little  abatement  of  those 
grievances  they  had  previously  suffered.  The  act  of  March 
3,  1863,  enlarged  somewhat  the  jurisdiction  of  the  court  and 
provided  for  an  appeal  to  the  Supreme  Court.     The  ad- 


THE  FEDERAL  COURTS  203 

vantages  of  this  appeal  were,  however,  practically  nulli- 
fied by  the  proviso  "that  no  money  should  be  paid  out  of 
the  treasury  upon  an  adjudication  of  the  court  until  after 
an  appropriation  therefor  should  be  estimated  for  by  the 
Secretary  of  the  Treasury."  This  virtually  subjected  the 
decision  of  the  court  to  an  executive  officer.  The  act  of 
March  17,  1866,  repealed  this  provision  and  gave  the  court 
effective  jurisdiction  in  general  over  claims  against  the 
Government  and  counter  claims  presented  on  the  part  of 
the  Government.^ 

Topics. — Purpose  of  Court  of  Claims. — Establishment  of  the 
court,  1S55. — Number  of  judges  at  first  and  later. — Appointment 
and  term. — Gricvaiices  to  be  set  aside  by  the  court. — Steps  in  the 
progress  of  the  court  toward  independence. — Present  jurisdiction. 

References, — Bryce,  American  Commonwealth,  i,  239;  Dawes, 
Hoio  We  Are  Governed,  27G-279;  Hinsdale,  American  Governinent, 
304;  Hart,  Actual  Government,  304. 

^  The  present  jurisdiction  of  the  court  is  indicated  by  the  following 
list  of  matters  which  it  may  hear  and  determine : 

1.  All  claims  founded  upon  any  law  of  Congress,  or  upon  any  regula- 
tion of  an  executive  department;  or  upon  any  contract,  expressed  or 
implied,  with  the  Government  of  the  United  States;  and  also  all  claims 
which  may  be  referred  to  it  by  either  house  of  Congress. 

2.  All  set-offs,  counter  claims,  claims  for  damages,  liquidated  or  un- 
liquidated, or  other  demands  whatsoever  on  the  part  of  the  Government 
of  the  United  States,  against  any  person  making  claim  against  the 
Government  in  said  court. 

3.  The  claim  of  any  disbursing  ofTicer  of  the  United  States,  or  of  his 
personal  representatives,  for  relief  from  responsibility  on  accoimt  of 
captures  or  otherwise,  while  in  the  line  of  his  duty,  of  Government  funds, 
vouchers,  records,  or  papers  in  his  charge,  and  for  which  such  officer  was 
and  is  held  responsible. 

4.  All  claims  for  the  proceeds  of  captured  or  abandoned  property 
under  the  act  of  March  12,  1863,  or  of  July  2,  1864;  provided  that  the 
jurisdiction  of  the  court  shall  not  extend  to  any  claim  against  the  United 
States,  growing  out  of  the  destruction  or  appropriation  of,  or  damage  to, 
property  by  the  army  or  navy  engaged  in  the  suppression  of  the  Re- 
bellion. 


204       THE  GOVERNMENT  OF  THE  UNITED  STATES 

n8.  Equity. — In  framing  a  system  of  laws  which  are 
general  in  their  appUcation,  it  is  not  possible  to  make  every 
law  so  perfect  that  no  injustice  will  ever  be  done  in  ad- 
ministering it  strictly.  It  was  the  original  imperfection  of 
the  laws  that  gave  rise  to  the  ideas  suggested  by  the  term 
"equity"  in  connection  with  a  system  of  laws.  In  theory, 
a  case  in  equity  originally  arose  when  a  subject,  finding  that 
the  law  as  applied  to  him  failed  to  render  essential  justice, 
appealed  from  the  decision  of  the  law  to  the  conscience  of 
the  king  who  had  made  the  law.  The  king,  however,  was 
not  always  in  a  position  to  deal  in  person  with  the  case,  and 
under  such  circumstances  turned  the  whole  matter  over  to 
his  secretary,  or  chancellor.  With  this  notion  of  the  origin 
of  equity  in  mind,  one  may  see  the  force  of  Grotius's  defini- 
tion that  equity  is  the  correction  of  that  wherein  the  law,  by 
reason  of  its  generality,  is  deficient.  When  this  is  the  case, 
and  the  person  directly  affected  has  suffered  unjustly  under 
the  decision,  he  naturally  looks  for  redress;  and  the  justice 
which  he  seeks  appears  to  be  identical  with  the  notion  of 
equity. 

There  exists  no  longer  an  appeal  directly  from  the  law 
to  the  lawmaker.  All  cases  for  the  enforcement  of  rights  or 
for  the  redress  of  wrongs  are  now  presented  to  courts;  some 
to  courts  of  law,  and  others  to  courts  of  equity,  or  to  law 
courts  dealing  with  equity  cases.  A  court  of  equity  now 
differs  from  a  court  of  law  "  mainly  in  the  subject  matters  of 
which  it  takes  cognizance  and  its  mode  of  procedure  and 
remedies." 

In  some  countries  cases  in  equity  and  cases  in  law  are 
tried  in  distinct  classes  of  courts,  while  in  other  countries 
the  two  kinds  of  cases  are  brought  before  the  same  court. 
In  England  the  practice  of  having  separate  courts  for  the 
two  classes  of  cases  has  generally  been  maintained,  and  in 
the  United  States  some  of  the  States  have  had  and  still  have 
separate  courts  for  cases  in  equity;  but  in  other  States  the 


THE   FEDERAL  COURTS  205 

same  courts  have  jurisdiction  in  both  law  and  equity. 
In  the  Federal  Government  there  are  no  purely  equity 
courts. 

Topics.  ^Origin  of  equity  cases. — How  presented  now. — Court 
of  equity  and  court  of  law. — As  to  the  two  clas.ses  of  courts  m 
England  and  the  United  States. 

Reference. — Miller,  Lectures,  318,  319. 

iiQ.  Courts  and  Constitutionality  of  Laws. — Pronoun- 
cing on  the  constitutionality  of  laws  is  one  of  the  impor- 
tant functions  of  the  courts  of  the  United  States.  To 
determine  the  constitutionality  of  a  legislative  act  is  to  de- 
termine whether  the  Legislature,  in  passing  it,  exceeded  the 
power  granted  to  that  body  by  the  Constitution  or  the 
superior  authority  under  which  the  Legislature  exists. 
This  function  of  the  courts  is  made  necessary  by  the  fact 
that  the  Constitution  cannot  be  modified  by  Congress  or 
by  any  established  legislative  body  with  regular,  predeter- 
mined times  for  holding  its  sessions,  and  by  the  further  fact 
that  any  other  law  with  provisions  not  in  harmony  with  the 
provisions  of  the  Constitution  is  invalid.  There  is  no  law 
in  England  which  holds  the  same  position  as  the  Constitu- 
tion of  the  United  States  or  the  statutes  made  under  it. 
The  English  Constitution  is  a  bundle  of  laws  and  traditions 
which  at  any  time  may  be  set  aside,  wholly  or  in  part,  by  an 
act  of  Parliament.  There  is,  therefore,  no  need  in  England 
of  a  court  to  perform  functions  like  those  performed  by  the 
United  States  courts  in  pronouncing  on  the  constitutionality 
or  unconstitutionality  of  laws.  The  American  court  in 
performing  these  functions  does  not  enter  into  a  debate  with 
the  Legislature  as  to  the  constitutionality  of  a  law.  It 
hears  a  case  under  the  law  in  (juestion,  brought  before  it  in 
the  regular  order  of  procedure,  and  finds,  in  rendering 
judgment  in  the  case,  that  the  law  under  which  the  case  is 
had  is  in  harmony  or  not  in  harmony  with  the  superior  law. 


206       THE  GOVERNMENT  OF  THE  UNITED  STATES 

If  not  in  harmony,  the  alleged  law,  by  that  showing,  is 
declared  unconstitutional. 

During  the  Civil  War  Congress  caused  paper  money  to 
be  issued  and  passed  a  law  making  it  legal  tender,  or  lawful 
money.  This  law  was  tested  in  the  only  way  provided 
for  testing  the  validity  of  a  law.  A  case  involving  it  was 
brought  before  a  court.  A  man  in  New  York  went  to  pay 
his  creditor  a  certain  sum  of  money  and  offered  it  in  United 
States  notes,  or  greenbacks.  The  creditor  claimed  he  should 
be  paid  in  gold  and  refused  to  accept  the  paper  money. 
Moreover,  he  brought  suit  before  the  district  court  to  compel 
the  debtor  to  pay  in  gold.  The  court  decided  that  the  paper 
currency  was  lawful  money,  and  that  all  debts  might  be 
paid  in  it.  The  creditor  then  appealed  to  the  circuit  court, 
which  rendered  the  same  decision  as  the  district  court. 
Finally  he  appealed  to  the  Supreme  Court,  where  it  was 
decided  that  the  law  under  which  the  paper  money  was 
issued  was  constitutional  and  valid.  He  could  not,  there- 
fore, compel  the  debtor  to  pay  in  gold.  The  decision  in  this 
case  showed  that  the  Legal  Tender  Act  was  constitutional; 
and  by  this  process  it  was  shown  that  Congress  had  power 
to  issue  paper  money. 

Topics.— When  a  law  is  unconstitutional.— Need  of  inquiring 
into  this  point  in  the  United  States.— Why  such  inquiries  not  neces- 
sary in  England. — How  a  law  is  declared  unconstitutional  by  an 
American  court. — Decision  on  the  Legal  Tender  Act. 

References. — Bryce,  American  Commonwealth,  i,  373;  Hinsdale, 
American  Government,  318;  Hart,  Actual  Government,  315-320; 
Lowell,  Essays,  118-13G;  Miller,  Lectures,  315-317. 

120.  Independence  of  the  Judges. — The  founders  of  the 
Government  were  moved  by  many  considerations  to  seek 
to  give  the  Federal  judges  sufficient  independence  to  enable 
them  to  render  practical  justice  in  all  cases.  They  are 
appointed,  and  they  hold  office  during  good  behavior,  and 


THE  FEDERAL  COURTS  207 

they  may  not  be  removed  except  by  impeachment.  Con- 
viction on  impeachment  is  the  only  method  of  determining 
that  their  good  behavior  has  ceased.  They  are  appointed 
by  the  President  and  confirmed  by  the  Senate  and  are, 
therefore,  not  obUged  to  seek  popular  favor  for  the  sake  of 
being  retained  in  office.  Having  been  appointed  for  life, 
they  need  not  court  the  favor  of  the  President.  Their 
salaries  may  not  be  diminished  during  their  continuance  in 
office,  and  thus  it  is  not  in  the  power  of  Congress  to  starve 
them  into  obedience  to  its  will.  But  an  opinion  of  the 
Supreme  Court  may  be  overruled,  as  already  indicated,  by 
an  action  of  Congress  and  the  President  in  increasing  the 
number  of  judges.  Any  judge  of  any  United  States  court, 
having  attained  the  age  of  seventy  years,  and  having  been 
ten  years  in  service,  may  resign  and  receive  the  same  salary 
as  that  which  he  had  while  in  the  active  performance  of 
the  duties  of  his  official  position. 

Topics. — Independence  strengthened  by  tenure  of  office. — Re- 
moval.— Judges  not  obliged  to  seek  favor. — Congress  not  able  to 
reduce  the  salaries  of  judges  while  in  office. — Continuance  of  sala- 
ries of  Federal  judges. 

References. — Bryce,  American  Commnmi^calth,  i,  239,  272,  305; 
Dawes,  Iluw  Tl'c  Arc  Governed,  259;  Hinsdale,  American  Govern- 
ment, 295,  29G;  Miller,  Lectures,  340-344. 

121.  Law  Applied  by  Federal  Courts. — The  Federal  courts 
with  respect  to  their  jurisdiction  differ  from  the  State 
courts.  Some  features  of  this  difference  arise  from  the  fact 
that  the  legal  system  of  each  State  rests  on  the  common 
law,  while  the  Federal  organization  as  such  has  no  such 
basis.  The  common  law  of  the  States  was  for  the  most 
part  derived  from  England,  but  it  has  undergone  certain 
modifications  in  the  several  States  through  the  influence  of 
local  circumstances  and  practices.  The  Federal  courts,  on 
the  other  hand,  must  find  their  law  in  the  Constitution  and 


208       THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  written  law  enacted  under  the  authority  of  the  Constitu- 
tion. In  every  case  where  they  would  impose  a  penalty 
they  must  find  the  power  to  do  it  in  the  Constitution,  in  a 
law  passed  by  Congress,  or  in  a  treaty.  "  But  the  Federal 
courts  sitting  in  the  several  States,  where  their  jurisdiction 
depends  upon  the  character  or  residence  of  the  parties  who 
sue  or  are  sued,  administer  for  the  most  part  the  local  law; 
and  they  take  notice  of  the  State  common  law,  usages,  and 
statutes,  and  apply  them  as  the  State  courts  would  apply 
them  in  like  controversies."  ^ 

Topics. — Difference  between  Federal  and  State  courts. — Origin 
of  the  common  law. — Law  applied  by  Federal  courts. — Local  law 
sometimes  administered  by  Federal  courts. 

References. — Hart,  Actual  Government,  306-314;  Cooley, 
Constitutional  Law,  13L 

122.  Impeachment. — The  Government  of  the  United 
States  is  so  organized  that  every  civil  officer  is  subject  not 
only  to  the  restraints  of  the  ordinary  law  courts,  but  also 
to  legislative  or  executive  control,  and  to  the  process  of  im- 
peachment. In  all  cases  where  executive  authority  has 
been  conferred  by  statute,  the  jurisdiction  of  the  officer 
abusing  it  may  be  taken  away  by  the  Legislature,  or  the 
officer  may  be  removed  by  the  Executive,  or  he  may  be  im- 
peached under  the  provisions  of  the  Constitution.  A  court, 
for  example,  established  by  statute  may  be  abolished;  the 
functions  of  an  officer  may  be  set  aside  or  added  to  the 
duties  of  another  officer;  but  the  most  practicable  and 
effective  restraints  on  civil  officers  are  found  in  the  provi- 
sions for  impeachment,  made  by  the  Constitution.  Under 
these  provisions  the  House  of  Representatives  has  "  the  sole 
power  of  impeachment."  The  court  before  which  the 
House  brings  the  case  is  composed  of  the  members  of  the 

1  Livingston's  Lessee  vs.  Morse,  7  Pet.,  469. 


THE  FEDERAL  COURTS  209 

Senate;  for  the  Senate  has  "the  sole  power  to  try  all  im- 
peachments." "  When  the  President  of  the  United  States  is 
tried,  the  chief  justice  shall  preside;  and  no  person  shall 
be  convicted  without  the  concurrence  of  two-thirds  of  the 
members  present."  "Judgment  in  cases  of  impeachment 
shall  not  extend  further  than  removal  from  office,  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment  according  to  law."  In  case  of 
judgment  rendered  in  an  impeachment  trial,  the  President 
has  no  power  to  grant  reprieve  or  pardon. 

The  Constitution  does  not  classify  or  describe  the  offenses 
subjecting  persons  to  impeachment.  It  provides,  however, 
that  "  the  President,  Vice-President,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  and  other 
high  crimes  and  misdemeanors."  It  is  asserted,  because 
the  Constitution  leaves  the  party  convicted,  liable,  and 
subject  to  indictment  according  to  law,  that,  therefore,  the 
power  of  impeachment  reaches  only  such  offenders  as  may 
be  indicted  and  punished  according  to  law.  On  the  other 
hand,  the  phrase  "high  crimes  and  misdemeanors"  is  af- 
firmed to  be  intentionally  vague  in  order  that  any  officer 
may  be  reached  by  this  process;  and  it  appears  to  be  settled 
that  the  President  or  any  other  officer  may  be  impeached 
for  any  offense,  and  that  it  remains  for  the  House  to  deter- 
mine in  what  cases  it  is  expedient  to  institute  impeachment 
proceedings.  Some  doubt  has  been  expressed  as  to  whether 
an  officer  may  escape  impeachment  by  resigning  his  office. 
In  view  of  the  fact  that  the  judgment  in  an  impeachment 
case  may  not  extend  further  than  removal  from  office,  there 
appears  nothing  to  be  obtained  by  impeachment,  provided 
the  person  it  was  proposed  to  impeach  has  resigned  before 
the  indictment  is  presented.     But  in  the  case  of  William 


210       THE  GOVERNMENT  OF  THE  UNITED  STATES 

W.  Belknap;  who  was  Secretary  of  War  under  President 
Grant  and  who  resigned  a  short  time  before  the  passage  of 
the  resolution  to  impeach  him,  it  was  voted  by  the  Senate 
that  he  was  subject  to  trial  by  impeachment  although  he 
had,  by  resigning,  ceased  to  be  Secretary  of  War.^ 

Topics. — Means  of  setting  aside  an  officer. — Power  of  impeach- 
ment.— Court  for  impeachment  cases. — In  case  of  impeaching  the 
President. — Judgment  in  cases  of  impeachment. — Cause  for  im- 
peachment.— Possibility  of  escape  from  impeachment  by  resigning 
office. — Belknap's  case. 

References. — Goodnow,  Comparative  Administrative  Law,  ii, 
296-298;  Hinsdale,  A7nerican  Government,  170-174;  Hart,  Actual 
Government,  304-306;  Lalor,  Cyclopaedia,  ii,  480. 

123.  Cases  of  Impeachment. — The  first  conspicuous 
case  of  impeachment  was  that  of  United  States  Senator 
William  Blount,  of  Tennessee,  in  1797.  The  charge  against 
him  was  that  he  was  engaged  in  a  conspiracy  to  transfer 
New  Orleans  and  the  neighboring  territory  from  Spain  to 
Great  Britain.  He  was  to  furnish  a  land  force  to  cooperate 
with  a  British  fleet  in  carrying  out  the  plan.  The  evidence 
against  him  was  a  letter  written  by  him  to  an  Indian  agent 
among  the  Cherokees.  This  letter,  together  with  other 
papers,  was  laid  before  Congress  by  the  President.  As  soon 
as  the  Senate  learned  that  the  House  intended  to  impeach 
him,  that  body  immediately  placed  him  under  bonds  to 
appear  for  trial,  and  subsequently  expelled  him.  The  time 
for  the  trial  was  set  for  December,  1798;  but  Blount  had 
in  the  meantime  been  elected  to  the  Senate  of  Tennessee 
and  did  not  appear.  The  most  important  point  in  the 
defense  made  by  his  counsel  was  that  as  senator  he  was  not' 
a  "  civil  officer  "  liable  to  impeachment.  This  plea  was  sus- 
tained, and  Blount  was  acquitted.  The  ground  of  acquittal 
was  the  Senate's  want  of  jurisdiction. 

'  See  page  213. 


THE   FEDERAL  COURTS  211 

Judge  John  Pickering,  of  the  Federal  district  court  for 
the  district  of  New  Hampshire,  was  impcaclied  in  1803. 
The  charge  against  him  was  that  he  had  rendered  decisions 
contrary  to  law,  that  he  was  habitually  drunk,  and  that  he 
had  been  guilty  of  profanity  while  on  the  bench.  The 
counsel  for  the  defense  undertook  to  prove  that  the  accused 
was  insttne.  To  this  the  managers  on  the  part  of  the  House 
replied  that  the  insanity,  if  shown,  was  a  consequence  of 
habitual  drunkenness,  and  that  to  substantiate  the  fact  of 
insanity  was  not  to  disprove  the  charge.  The  Senate,  by 
a  party  vote,  decided  for  conviction,  and  removed  the 
accused  from  office. 

Samuel  Chase,  a  justice  of  the  Federal  Supreme  Court, 
was  impeached  in  1804.  The  charges  against  him  covered 
a  number  of  specifications:  (1)  That  Justice  Chase  had  re- 
fused to  allow  the  counsel  for  John  Fries  to  argue  various 
points  of  law,  and  had  announced  his  opinion  as  already 
formed,  causing  the  counsel  to  abandon  the  case;  (2)  that 
in  the  trial  of  J.  T.  Callender  for  sedition,  he  had  refused  to 
excuse  a  juror  who  had  already  formed  the  opinion  that  the 
accused  was  guilty;  (3)  that  he  had  refused  to  allow  one  of 
Callender 's  witnesses  to  testify;  (4)  that  he  had  so  far  in- 
terfered with  Callender's  counsel  in  the  conduct  of  the  case 
as  to  lead  him  to  abandon  it;  (5)  that,  in  a  case  which  was 
not  capital,  ho  had  arrested,  instead  of  summoning,  the  ac- 
cused; (6)  that  he  had  refused  to  allow  a  case  to  be  postponed 
when  there  appeared  to  be  good  ground  for  postponement; 
(7)  that  he  had  urged  a  grand  jury  in  Delaware  to  find  an 
indictment  under  the  Sedition  Law  against  its  will ;  (8)  that 
he  had  made  "  highly  indecent  and  extrajudicial "  reflections 
on  the  Government  of  the  United  States  before  a  grand  jury 
in  Maryland.  The  last  item  refers  to  the  judge's  habit  of 
delivering  disquisitions  in  connection  with  his  charges  to  the 
grand  juries,  which  contained  vigorous  comments  on  current 
political  events.     There  appeared  to  be  a  small  majority  in 


212       THE  GOVERNMENT  OF  THE  UNITED  STATES 

favor  of  conviction  on  the  third,  fourth,  and  eighth  charges; 
but,  as  the  majority  found  him  not  guilty  on  all  the  other 
specifications,  he  was  ultimately  found  to  be  not  guilty  on 
any,  and  continued  to  hold  his  position  in  the  court  during 
the  rest  of  his  life. 

Judge  Peck,  of  the  district  court  in  Missouri,  was  im- 
peached by  the  House  in  1830.  The  charge  was  arbitrary 
conduct  in  punishing  for  contempt  of  court  an  attorney 
who  had  published  a  severe  criticism  on  his  decision  in  a 
certain  land  case.  The  Senate  was  nearly  equally  divided. 
The  vote  in  reaching  a  decision  stood  twenty-four  to  twenty- 
one  in  favor  of  the  accused,  and  he  was  acquitted. 

Judge  Humphreys,  of  the  Federal  district  court  in 
Tennessee,  was  impeached  and  tried  in  1862.  He  had  re- 
tained his  seat  on  the  bench  while  actually  engaged  in  pro- 
moting the  interests  of  the  Rebellion.  Impeachment  was 
resorted  to  as  a  means  of  making  the  post  held  by  Hum- 
phreys vacant,  and  the  Senate  voted  unanimously  for  con- 
viction. 

Andrew  Johnson,  President  of  the  United  States,  was 
impeached  in  1867.  He  was  charged  with  conduct  involv- 
ing intention  to  violate  the  Tenure  of  Office  Act;  conspiracy 
to  prevent  E.  M.  Stanton  from  acting  as  Secretary  of  War; 
conspiracy  to  seize  the  War  Department's  property  by  force, 
and  to  control  unlawfully  the  disbursement  of  the  funds  of 
that  department.  He  was  charged,  moreover,  with  an 
attempt  to  induce  General  Emory,  commanding  the  De- 
partment of  Washington,  to  violate  acts  regulating  the 
issuance  of  orders  to  the  army;  and  with  giving  expression, 
with  reference  to  Congress,  to  "utterances,  declarations, 
threats,  and  harangues,  highly  censurable  in  any,  and  par- 
ticularly indecent  and  unbecoming  in  the  chief  magistrate 
of  the  United  States,  by  means  whereof  said  Andrew  John- 
son has  brought  the  high  office  of  President  into  contempt, 
ridicule,  and  disgrace,  to  the  great  scandal  of  all  good 


THE  FEDERAL  COURTS  213 

citizens";  also  with  denying  that  the  legislation  of  Congress 
was  binding  upon  him,  and  that  Congress  had  any  power 
to  propose  amendments  to  the  Constitution.  The  charges 
were  distributed  under  eleven  heads.  A  vote  was  taken, 
May  16,  on  the  eleventh  article  first,  showing  thirty-five 
for  conviction  and  nineteen  for  acquittal.  Ten  days  later 
a  vote  was  taken  on  the  second  and  third  articles  with  the 
same  result.  The  majority  lacking  one  vote  of  the  two- 
thirds  requisite  for  conviction,  the  Chief  Justice  ordered  a 
verdict  of  acquittal  to  be  entered  on  the  records. 

William  W.  Belknap,  Secretary  of  War,  was  impeached 
in  1876.  He  was  charged  with  receiving  money  for  the 
appointment  and  retention  in  office  of  a  post  trader  in 
Indian  Territory.  A  few  hours  before  the  passage  of  the 
resolution  to  impeach  him,  he  resigned;  but  it  was  decided 
by  a  vote  of  thirty-seven  to  twenty-nine  that  he  was  sub- 
ject to  trial  by  impeachment.  This  vote,  however,  in- 
dicated that  the  majority  requisite  for  conviction  could  not 
be  obtained;  and  after  the  presentation  of  the  evidence  and 
the  arguments  it  was  found  that  the  vote  on  some  of  the 
articles  stood  thirty-five  to  twenty-five,  on  others  thirty- 
six  to  twenty-five,  and  on  still  others  thirty-seven  to  twenty- 
five.  The  requisite  majority  of  two-thirds  not  being  had  on 
any  article,  the  Senate  rendered  a  verdict  of  acquittal. 

Topics. — Senator  William  Blount. — Judge  John  Pickering. — 
Samuel  Chase. — Judge  Peck. — Judge  Humphreys. — Andrew  John- 
son.— Secretary  Belknap. 

References. — Goodnow,  Caitiparalive  Administrative  Law,  ii, 
29S,  299;  Hinsdale,  American  Government,  174,  175;  Lalor,  Cydo- 
vcedia,  ii,  480. 

124.  Court-Martial. — A  court-martial  is  a  tribunal  for 
the  trial  of  offenses  arising  in  the  military  and  naval  service. 
It  is  created  under  the  authority  of  Congress  and  is  composed 
of  a  varying  number  of  officers.     In  Great  Britain  there  arc 


214       THE  GOVERNMENT  OF  THE  UNITED  STATES 

three  grades  of  court-martial — general,  district  or  garrison, 
and  regimental,  and  the  distinction  of  these  grades  is  ob- 
served also  in  the  United  States.  The  general  court-martial 
consists  of  any  number  of  officers  from  five  to  thirteen. 
They  may  be  appointed  by  the  President  or  by  any  general 
officer  commanding  the  army  of  the  United  States,  a  sepa- 
rate army,  or  a  separate  department.  In  the  case  of  the  gar- 
rison or  regimental  court-martial,  the  members  of  the  court 
are  appointed  by  the  commanding  officer.  Before  the  sen- 
tence in  any  case  tried  by  the  court  is  carried  out,  it  must 
be  approved  by  the  appointing  officer.  The  jurisdiction  of 
a  court-martial  is  confined  to  persons  duly  enlisted  or  ap- 
pointed in  the  military  or  naval  service;  and  the  concur- 
rence of  two-thirds  of  the  members  of  the  court  is  required 
to  pronounce  the  sentence. 

Topics. — Description  of  a  court-martial. — Grades  in  Great 
Britain  and  the  United  States. — Appointment. — Approval  of  sen- 
tence.— Jurisdiction  of  a  court-martial. 

References. — Lalor,  CyclopcEdia,  i,  693;  Cooley,  Constitutional 
Law,  137,  138. 

FOR  ADVANCED   STUDY 

The  Supreme  Court. — Bryce,  American  Commonwealth,  i, 
Chaps.  XXII-XXIV;  Carson,  Supreme  Court;  Thayer,  John  Mar- 
shall, Chaps.  III-V;  Tucker,  Constitution,  i.  Chap.  XIII;  Willough- 
by.  Supreme  Court;  Goodnow,  Comparative  Administrative  Law,  ii, 
144-216;  Cooley,  Constitutional  Law,  Chap.  VI;  Cooley  and  others, 
Constitutional  History,  29-52. 

John  Marshall  and  His  Interpretation  of  the  Con=> 
stitution. — Cooley  and  others,  Constitutional  History,  Chap.  II; 
Morse,  Adams,  321,  322;  Schouler,  United  States,  i,  Index;  Magru- 
der,  John  Marshall,  82-201. 

Decisions  of  Chief  Justice  Taney  and  their  Influence 
on  the  Constitutional  Development  of  the  United  States. 

— Cooley  and  others,  Constitutional  History,  120-199;  MacDonald, 


THE  FEDERAL  COURTS  215 

Select  Documents,  295-298;   Supreme  Court   Reports,   11  Peters-2 
Black. 

The  Dred  Scott  Decision. — MacDonald,  Select  Documents, 
416-435;  Nicolay  and  Hay,  Abraham  Lincoln,  ii,  Chap.  IV;  Rhodes, 
United  States,  ii,  249-271;  II.  von  Hoist,  United  States,  vi,  Chap. 
I;  Lincoln,  Works,  i,  228-235;  Hart,  Contemporaries,  iv,  122-135; 
Lathrop,  Seward,  181-186. 

Relation  of  the  Courts  to  Legislation. — Thayer,  Origin 
and  Scope  oj  the  American  Doctrine  o/  Constitutional  Law;  Thayer, 
John  Marshall,  61-78,  95-101,  104-110;  Thayer,  Cases  on  Constitu- 
tional Law,  i,  9-47,  146-154;  Coxe,  Judicial  Power  and  Uncon- 
stitutional Legislation;  American  Law  Review,  yAX,  175-203;  Cooley 
and  others,  Constitutional  History,  9-14,  37-43,  76-80,  179-188, 
221-223,  226-233. 

The  Decision  in  the  Case  of  McCulloch  vs.  the  State 
of  Maryland. — Channing  and  Hart,  Guide,  358;  Supreme  Court 
Reports,  4  Wheaton,  316. 

The  Webster-Hayne  Debate. — Channing  and  Hart,  Guide, 
370. 

The  Interpretation  of  the  Constitution. — Bryce,  Ameri- 
can Commonwealth,  366-375;  Lalor,  Cyclopcedia,  i,  610,  611;  Chan- 
ning and  Hart,  Guide,  326-328. 

The  Dartmouth  College  Case. — Supreme  Court  Reports,  4 
Wheaton,  518. 

Daniel  Webster's  Interpretation  of  the  Constitution. 

— Webster's  Works, 


CHAPTER  VIII 

RICxHTS  AND  PRIVILEGES  OF  CITIZENS 

125.  The    Historical    Basis    of    Political    Liberty.— The 

common,  or  so-called  unwritten,  law  of  England  was  a  sig- 
nificant part  of  the  heritage  of  the  United  States.  It  in- 
volved the  rights  that  had  been  specifically  set  forth  "in 
certain  historical  documents,  which  in  both  England  and 
America,  had  been  looked  upon  and  revered  as  the  charters 
of  liberty."  ^  The  most  important  of  these  documents  are 
Magna  Charta,  the  Petition  of  Right,  the  Habeas  Corpus 
Act,  and  the  Bill  of  Rights.  They  represent  stages  in  the 
growth  of  individual  liberty,  and  together  constitute  the 
basis  of  many  of  the  rights  enjoyed  by  citizens  of  the  United 
States.  They  were  issued  to  redress  grievances,  or  to  fur- 
nish guarantees  for  the  recognition  of  the  rights  of  the  people 
in  the  future. 

In  the  thirteenth  century  the  barons  of  England,  in 
order  to  be  able  to  force  the  king  to  restore  their  ancient 
rights,  made  common  cause  with  the  people.  As  a  result  of 
the  conflict  that  ensued,  the  Great  Charter  was  granted  in 
1215.  With  respect  to  the  later  liberties  of  the  English 
people,  whether  in  England  or  in  any  other  part  of  the  world, 
the  most  important  provision  of  that  charter  was  the  fol- 
lowing: "No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseized  of  his  freehold  or  liberties  or  free  customs,  or  be 
outlawed,  or  exiled,  or  any  otherwise  destroyed;    nor  will 

'  Cooley,  Constitutional  Law,  6. 
216 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  217 

we  pass  upon  him  nor  condemn  him  but  by  a  lawful  judg- 
ment of  his  peers,  or  by  the  hiw  of  the  land;  we  will  sell  to 
no  man,  we  will  not  deny  or  defer  to  any  man,  either  right 
or  justice."  This  provision  confirmed  ancient  liberties  and 
guaranteed  personal  security  for  the  future.  The  common 
man  was  protected  in  the  possession  of  the  property  espe- 
ciall}^  necessary  for  his  economical  welfare:  "even  a  villain 
or  rustic  should  not  by  any  fine  be  bereaved  of  his  carts, 
ploughs,  and  implements  of  husbandry."  The  constitutional 
principle  "that  no  taxes  shall  be  laid  except  by  consent  of 
the  persons  taxed,  expressed  through  their  representatives," 
was  established  by  the  provision  that  "  no  scutage  ^  or  aid 
shall  be  imposed  in  our  kingdom  unless  by  the  General 
Council  of  our  Kingdom." 

The  Petition  of  Right  recited  and  reaffirmed  the  prin- 
ciples that  had  been  established  in  Magna  Chart  a.  It  is  a 
statute  passed  in  1627,  in  the  early  part  of  the  reign  of 
Charles  I.  Its  aim,  like  that  of  Magna  Charta,  was  to  se- 
cure the  personal  and  civil-liberties  of  the  people  against  the 
encroachments  of  the  king.  It  proposed  not  to  create  new 
rights,  but  to  reestablish  and  defend  those  which  English 
subjects  had  previously  enjoyed.  It  prohibited  unlawful 
taxes  and  assessments,  forced  loans,  illegal  arrests  and  im- 
prisonments, the  quartering  of  soldiers  on  private  citizens, 
and  a  resort  to  martial  law  in  civil  cases.  This  petition, 
having  been  voted  by  Parliament  and  approved  by  the  king, 
strengthened  the  foundation  of  English  liberty  that  had 
been  laid  by  the  Great  Charter.  It  provided  against  illegal 
arrests  and  imprisonments;  but  in  order  to  make  effective 
these  provisions,  there  was  needed  a  clear  and  definitely 
established  procedure  of  relief.  This  was  furnished  bv 
the  Habeas  Corpus  Act,  passed  in  1679,  in  the  reign  of 
Charles  11. 

*  Shield  money  (Latin,  scutum,  a  shield);  a  tax  paid  in  lieu  of  mili- 
tary service. 
15 


218      THE   GOVERNMENT   OF  THE   UNITED   STATES 

The  Habeas  Corpus  Act  requires  the  body  of  a  person 
restrained  of  Hberty  to  be  brought  before  the  judge  or  into 
court,  that  the  lawfulness  of  the  restraint  may  be  investi- 
gated and  determined.  Through  the  procedure  furnished 
by  this  act,  the  guarantees  of  personal  liberty  provided  in 
the  ancient  charters  became  effective,  and  another  addition 
was  made  to  the  structure  of  constitutional  liberty  which 
the  English  people  were  building. 

Liberty  was,  however,  not  won  by  a  single  battle.  The 
appearance  of  arbitrary  kings  from  time  to  time  tended  to 
set  aside  the  advantages  which  had  been  gained  by  the 
people.  The  last  effort  to  establish  the  absolute  power  of 
the  Crown  was  made  by  the  Stuart  kings.  Their  overthrow 
offered  the  opportunity  for  a  final  reestablishment  of  the 
rights  and  liberties  of  the  people.  This  was  done  through 
the  Declaration  of  Rights,  which,  as  the  Bill  of  Rights,  be- 
came the  law  of  the  land  in  the  early  part  of  the  reign  of 
William  and  Mary.  This  statute  declared  the  right  of  the 
subject  to  petition  the  king.  It  established  freedom  of 
election  of  members  of  Parliament,  and  freedom  of  speech  in 
Parliament.  It  made  illegal  the  maintenance  of  standing 
armies  without  the  consent  of  Parliament,  and  affirmed  that 
the  king  had  no  power  of  suspending,  or  dispensing  with, 
laws.  It  provided  that  excessive  bail  should  not  be  re- 
quired, nor  excessive  fines  imposed,  nor  cruel  or  unusual 
punishment  inflicted.  It  formulated  many  of  the  most 
vital  political  principles  that  underlie  modern  constitu- 
tional government. 

Topics. — Common  law  and  rights. — Important  documents  in 
the  evolution  of  rights  of  Englislimen. — Purpose  of  these  documents. 
— The  Great  Charter. — Petition  of  Right. — Habeas  Corpus  Act. — 
Bill  of  Rights. 

References.— Cooley,  Conditutional  Law,  G-S;  Fiske,  Civil 
Government,  195-200;  livai.  Actual  Government,  21-23,  39-41;  Lalor, 
Cydopcedia,  ii,  800;  Lowell,  Essays,  60-117. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  219 

126.  The  Bill  of  Rights  and  the  Constitution  of  the 
United  States. — The  Constitution,  as  submitted  to  the 
States,  provided  that  the  privilege  of  the  writ  of  habeas 
corpus  should  not  be  suspended  unless,  when,  in  case  of 
revolution  or  invasion,  the  public  safety  might  require  it. 
It  provided  also  that  no  bill  of  attainder  ^  or  ex  post  facto 
law  2  should  be  passed,  and  that  the  trial  of  all  crimes,  ex- 
cept in  cases  of  impeachment,  should  be  by  jury.  These 
restrictions,  however,  were  not  thought  to  be  sufficiently 
extensive.  The  people  still  feared  oppression  by  the  Govern- 
ment; and,  when  they  found  that  the  Constitution  con- 
tained no  bill  of  rights,  they  refused  to  adopt  it  until  per- 
suaded that  an  amendment  would  be  made  containing 
the  desired  provision.  They  held  that  a  recognition  of  the 
fundamental  rights  that  had  been  won  by  the  people  in  the 
English  struggle  for  liberty  was  essential  to  good  govern- 
ment. They  wished  the  Constitution  to  contain  a  bill  of 
rights;  and,  in  obedience  to  this  wish,  the  early  amendments 
were  adopted.  The  first  ten  amendments  have  the  character 
of  a  bill  of  rights,  and  several  of  their  provisions  indicate 
a  direct  descent  from  the  English  law.  They  affirm  the 
right  of  the  people  to  petition  the  Government  for  a  redress 
of  grievances;  that  "no  soldier  shall  in  time  of  peace  be 
quartered  in  any  house  without  the  consent  of  the  owner, 
nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  ])y 
law,"  and  that  "excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  or  unusual  punishment 
inflicted."  The  limitations  stated  in  these  provisions  refer 
only  to  the  action  of  the  Federal  Government.  The  clause 
afiirming  that  no  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed  restricts  simply  the  powers  of  the  Congress. 
Referring  to  Marshall's  decision,  Cooley  formulates  briefly 
the  accepted  doctrine  on  this  subject,  as  follows:    "The 

^  See  page  220.  '  See  page  221. 


220      THE   GOVERNMENT   OF   THE   UNITED   STATES 

restrictions  imposed  upon  government  by  the  Constitution 
and  its  amendments  are  to  be  understood  as  restrictions 
only  upon  the  government  of  the  Union,  except  where  the 
States  are  expressly  mentioned."  ^ 

A  bill  of  attainder,  which  both  Congress  and  the  State 
legislatures  are  expressly  forbidden  to  pass,  is  a  law  framed 
and  enacted  by  a  legislature  declaring  a  person  by  name, 
or  declaring  a  class  of  persons,  to  be  guilty  of  crime,  and 
ordering  him  or  them  to  be  capitally  punished.  When  the 
punishment  mentioned  in  the  law  is  of  a  degree  less  than 
death,  the  law  is  technically  known  as  a  bill  of  pains  and 
penalties.  In  a  decision  of  the  Supreme  Court,  delivered  by 
Mr.  Justice  Field,  is  found  the  following  definition:  "A  bill 
of  attainder  is  a  legislative  act  which  inflicts  punishments 
without  a  judicial  trial.  If  the  punishment  be  less  than 
death,  the  act  is  termed  a  bill  of  pains  and  penalties.  Within 
the  meaning  of  the  Constitution,  bills  of  attainder  include 
bills  of  pains  and  penalties.  In  these  cases  the  legislative 
body,  in  addition  to  its  legitimate  functions,  exercises  the 
powers  and  office  of  judge:  it  assumes,  in  the  language  of 
the  text-books,  judicial  magistracy;  it  pronounces  upon  the 
guilt  of  the  party,  without  any  of  the  forms  or  safeguards 
of  trial;  it  determines  the  sufficiency  of  the  proofs  produced, 
whether  conformable  to  the  rules  of  evidence  or  otherwise; 
and  it  fixes  the  degree  of  punishment  in  accordance  with  its 
own  notions  of  the  enormity  of  the  offense.  These  bills 
are  generally  directed  against  individuals  by  name;  but 
they  may  be  directed  against  a  whole  class." 2  Condem- 
nations of  this  kind  may  represent  an  extreme  of  tyranny; 
for  "no  trial  is  necessary,  no  legal  evidence,  no  notice  to 
the  accused,  no  opportunity  for  defense,  no  examination  of 
witnesses,  even  no  crime." 

^  Cooley,  Constitutional  Law,  19. 

^  Curamings  vs.  the  State  of  Missouri,  4  Wallace,  277. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  221 

It  is  not  difficult  to  sec  how  objections  to  ex  post  facto 
laws  might  find  expression  in  a  constitutional  prohibition. 
This  is  a  technical  term  which  applies  only  within  the  field 
of  criminal  law.  Ex  post  facto  laws  are  only  such  laws  "  as 
declare  an  act  criminal,  and  provide  for  its  punishment, 
which,  at  the  time  of  its  commission,  was  not  a  crime;  or 
such  as  change  the  punishment  of  a  known  crime  in  any 
other  manner  than  by  mitigating  it,  and  are  to  operate 
upon  past  as  well  as  future  offenses;  or  such  as  alter  the 
rules  of  evidence  or  other  procedure,  so  that  conviction 
shall  be  made  easier,  and  are  to  apply  as  well  to  those  who 
committed  the  act  prior,  as  to  those  who  committed  it  sub- 
sequently, to  the  passage  of  the  statute." 

Topics. — Restrictions  in  Constitution  as  submitted. — Popular 
view  as  to  a  bill  of  rights. — Nature  of  first  ten  amendments. — Bill 
of  attainder. — Bill  of  pains  and  penalties. — Ez  post  facto  laws. 

References. — Bryce,  American  Commonwealth,  i,  28;  Cooley, 
Constitutional  Law,  17-19;  Hinsdale,  American  Government,  109; 
Lalor,  Cyclopcedia,  i,  284;  Lowell,  Essays,  S3. 

127.  Bill  of  Rights  in  State  Constitutions. — The  promi- 
nence given  to  the  "Rights  of  Man"  in  the  discussions  in 
France  during  the  French  Revolution  called  attention  to  the 
principles  of  the  Bill  of  Rights;  and,  after  this,  constitu- 
tion makers  gave  larger  place  than  previously  to  statements 
of  these  general  principles.  The  Bill  of  Rights  has,  there- 
fore, become  a  conspicuous  feature  of  recent  State  Constitu- 
tions and  merits  a  careful  consideration,  since  it  sets  forth 
certain  principles  that  are  fundamental  in  the  American 
Government.  The  following  arc  the  essential  propositions 
contained  in  the  Bill  of  Rights  found  in  the  several  State 
constitutions: 

1.  All  men  are  by  nature  equally  free  and  independent, 
and  have  certain  inherent  rights;  among  these  are  life, 
liberty,  and  the  pursuit  of  happiness. 


222      THE   GOVERNMENT  OF  THE   UNITED  STATES 

2.  All  political  power  is  inherent  in  the  people.  Govern- 
ment is  instituted  for  the  protection,  security,  and  benefit 
of  the  people. 

3.  Every  person  has  a  right  to  worship  God  according  to 
the  dictates  of  his  own  conscience;  and  no  person  can  of 
right  be  compelled  to  attend,  erect,  or  support,  against  his 
will,  any  place  of  religious  worship,  or  pay  any  tithes,  taxes, 
or  other  rates  for  the  support  of  any  minister  of  the  gospel 
or  teacher  of  religion. 

4.  No  money  shall  be  drawn  from  the  public  treasury 
for  the  benefit  of  religious  societies  or  theological  or  religious 
seminaries. 

5.  The  civil  and  political  rights,  privileges,  and  capacities 
of  no  individual  shall  be  diminished  or  enlarged  on  account 
of  his  opinion  or  belief  concerning  matters  of  religion. 

6.  Every  person  may  speak,  write,  and  publish  his  sen- 
timents on  all  subjects,  being  responsible  for  the  abuse  of 
that  right.  No  law  shall  be  passed  to  restrain  or  abridge 
the  liberty  of  speech  or  of  the  press.  In  all  prosecutions  or 
indictments  for  libel,  the  truth  may  be  given  in  evidence  to 
the  jury;  and  if  it  appear  to  the  jury  that  the  matter  charged 
as  libelous  was  true,  and  was  published  with  good  motives 
and  justifiable  ends,  the  party  shall  be  acquitted. 

7.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects  against  unreasonable  seizures  and 
searches  shall  not  be  violated;  and  no  warrant  shall  be 
issued  except  on  probable  cause,  supported  by  oath  or 
affirmation,  particularly  describing  the  place  to  be  searched, 
and  the  persons  and  things  to  be  seized. 

8.  The  right  of  trial  by  jury  shall  remain  inviolate. 

9.  In  all  criminal  prosecutions,  and  in  cases  involving 
the  life  or  liberty  of  the  individual,  the  accused  shall  have 
right  to  a  speedy  and  public  trial  by  an  impartial  jury;  to 
be  informed  of  the  accusation  against  him,  and  to  have  a 
copy  of  the  same  when  demanded;  to  be  confronted  with  the 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  223 

witnesses  against  him,  to  have  compulsory  process  ^  for  his 
own  witnesses,  and  to  have  the  assistance  of  counsel. 

10.  All  offenses  that  are  less  than  felony,  and  in  which 
the  punishment  does  not  exceed  a  fine  of  SlOO,  or  imprison- 
ment for  thirty  days,  shall  be  tried  summarily  before  a  jus- 
tice of  the  peace,  or  other  ofliccr  authorized  by  law,  on 
information  under  oath,  without  indictment  or  the  inter- 
vention of  a  grand  jury,  saving  to  the  defendant  the  right 
of  appeal;  and  no  person  shall  be  held  to  answer  for  any 
higher  criminal  offense,  unless  on  presentation  or  indictment 
by  a  grand  jury,  except  in  cases  arising  in  the  army  or  navy, 
or  in  the  militia  when  in  actual  service,  in  time  of  war  or 
public  danger. 

11.  Excessive  bail  shall  not  be  required,  nor  shall  ex- 
cessive fines  be  imposed,  nor  cruel  and  unusual  punishments 
inflicted. 

12.  No  bill  of  attainder,  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts  shall  be  passed. 

13.  The  writ  of  habeas  corpus  shall  not  be  suspended  or 
refused  when  application  is  made  as  required  by  law,  unless, 
in  case  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it. 

14.  The  military  shall  be  subordinate  to  the  civil  power. 
No  standing  army  shall  be  kept  up  by  the  State  in  time  of 
peace;  and  in  time  of  war  no  appropriation  for  a  standing 
army  shall  be  for  a  longer  time  than  two  years. 

15.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war 
except  in  the  manner  prescribed  by  law. 

16.  Treason  against  the  State  shall  consist  only  in  levy- 
ing war  against  it,  adhering  to  its  enemies,  or  giving  them 

'  A  process,  in  law,  is  the  summons,  mandate,  or  command  by  which 
a  defendant  or  a  thinjj;  is  bronf!;ht  before  a  court  for  litigation;  in  other 
words,  it  is  the  means  employed  in  compelling  the  defendant  to  appear 
in  court. 


224      THE   GOVERNMENT   OF  THE  UNITED  STATES 

aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  evidence  of  two  witnesses  of  the  same  overt 
act,  or  confession  in  open  court. 

17.  No  person  shall  be  imprisoned  for  debt  in  any  civil 
action  on  mesne  or  final  process,^  unless  in  case  of  fraud; 
and  no  person  shall  be  imprisoned  for  a  militia  fine  in  time 
of  peace. 

18.  The  people  have  the  right  freely  to  assemble  to- 
gether to  counsel  for  the  common  good,  to  make  known 
their  opinions  to  their  representatives,  and  to  petition  for  a 
redress  of  grievances, 

19.  No  person  shall,  after  acquittal,  be  tried  for  the  same 
offense.  All  persons  shall,  before  conviction,  be  bailable 
by  sufficient  securities,  except  for  capital  offenses  where  the 
proof  is  evident  or  the  presumption  great. 

20.  Private  property  shall  not  be  taken  for  public  use 
without  just  compensation  first  being  made  or  secured,  to 
be  paid  to  the  owner  thereof  as  soon  as  the  damages  shall 
be  assessed  by  a  jury,  who  shall  not  take  into  consideration 
any  advantages  that  may  result  to  said  owner  on  account 
of  the  improvement  for  which  it  is  taken. 

In  some  of  the  later  constitutions  there  is  observed  a 
tendency  to  take  for  granted  or  to  lay  aside  these  general 
maxims  and  to  introduce  specific  declarations. 

Topics. — Bill  of  r{,if;;hts  during  French  Revolution. — Bill  of 
Rights  in  State  constitutions. — Tendency  iu  later  constitutions. 

References. — Bryce,  American  Commonwealth,  i,  438-442, 
711;  Hinsdale,  American  Government,  109,  376;  Macy,  Our  Govern- 
ment, 30. 

128.  Suspension  of  the  Writ  of  Habeas  Corpus. — To  sus- 
pend the  writ  of  habeas  corpus  means  to  make  such  pro- 

'  A  mesne  process  is  any  process  in  a  suit  which  intervenes  between  the 
orifrinal  process  of  writ  and  the  final  execution;  while  the  final  process  is 
the  writ  of  execution  used  to  carry  the  judgment  of  the  court  into  effect. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  225 

vision  that  persons  arrested  will  not  have  the  right  to  an 
immediate  hearing  before  a  court,  thus  making  it  possible 
for  persons  to  be  arrested  and  imprisoned  without  regular 
process  of  law.  The  power  to  suspend  the  writ  of  habeas 
corpus,  according  to  the  decisions  of  the  Supreme  Court,  is 
a  legislative  power;  and  the  President  cannot  exercise  it 
except  as  authorized  by  law.  ^  But  practice  has  not  al- 
ways followed  this  doctrine.  In  1861,  President  Lincoln 
issued  an  order  to  Lieutenant  General  Scott  suspending  the 
writ.  This  was  two  years  before  Congress  passed  its  first 
act  for  the  same  purpose.  The  President's  action  was 
thought  to  be  justified  by  the  following  opinion  of  Attorney- 
General  Bates:  "If  by  the  phrase,  'the  suspension  of  the 
writ  of  habeas  corpus,'  we  must  understand  a  repeal  of  all 
power  to  issue  the  writ,  then  I  freely  admit  that  none  but 
Congress  can  do  it.  But  if  we  are  at  liberty  to  understand 
the  phrase  to  mean  that  in  case  of  a  great  and  dangerous 
rebellion  like  the  present,  the  public  safety  requires  the 
arrest  and  confinement  of  persons  implicated  in  that  re- 
bellion, I  as  freely  declare  the  opinion  that  the  President  has 
lawful  power  to  suspend  the  privilege  of  persons  arrested 
under  such  circumstances;  for  he  is  specially  charged  by 
the  Constitution  with  the  public  safety,  and  he  is  the  sole 
judge  of  the  emergency  which  requires  his  prompt  action." 
The  Constitution  does  not  formally  adopt  the  writ  of 
habeas  corpus,  but  presumes  it  to  be  authoritative  in  the 
United  States  as  a  part  of  the  common-law  inheritance  from 
England.  This  presumption  is  expressed  in  the  provision 
that  "the  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it."  The  writ  of  habeas  corpus 
exists  as  an  element  of  State  law  either  by  informal  recog- 
nition or  by  a  specific  act  of  the  Legislature;  and  the  State 

*  Cooley,  Constitutional  Law,  289. 


226      THE   GOVERNMENT   OF  THE   UNITED  STATES 

constitutions  make  essentially  the  same  reference  to  its 
suspension  as  tlie  Federal  Constitution.  The  purpose  of 
the  writ  is  to  make  such  provisions  that  persons  arrested 
may  not,  for  any  considerable  period  of  time,  be  deprived  of 
their  liberty  unless  the  ground  of  their  detention  is  such  as 
to  convince  a  court  that  under  the  law  they  should  be  im- 
prisoned. The  writ  may,  moreover,  be  appealed  to  to  set 
free  any  person  illegally  deprived  of  his  Hberty,  or  to 
set  free  a  person  confined  under  a  false  charge  of  insanity, 
or  by  parents  to  get  control  of  their  children  unlawfully 
detained  by  others. 

By  proceeding  with  military  force  against  a  part  of  the 
nation  in  rebelHon,  the  President,  as  commander  in  chief, 
brings  about  a  state  of  things  in  which  the  writ  of  habeas 
corpus  is  practically  suspended.  "During  the  administra- 
tion of  President  Washington,  the  military  authorities  en- 
gaged in  suppressing  the  Pennsylvania  'Whisky  Insurrec- 
tion' of  1794  and  1795,  disregarded  the  writs  which  were 
issued  by  the  courts  for  the  release  of  the  prisoners  who  had 
been  captured  as  insurgents.  General  Wilkinson,  under  the 
authority  of  President  Jefferson,  during  the  Burr  Conspiracy 
of  1806,  suspended  the  privilege  of  this  writ,  as  against  the 
superior  court  of  New  Orleans. "  The  declaration  of  martial 
law  has  the  effect  of  suspending  the  WTit  of  habeas  corpus. 

Topics. — Effect  of  suspending  writ  of  habeas  corpus. — Power 
to  suspend  the  writ. — Lincoln's  action. — Attorney-General's  opin- 
ion.— Habeas  corpus  and  the  Constitution. — Purpose  of  the  writ. — 
Suspension  in  case  of  rebellion. 

References. — Bryce,  American  Commonweallh,  i,  55;  Fiske, 
Civil  Government,  257;  Hinsdale,  American  Government,  237-239; 
Hart,  Actual  Government,  27;  Lalor,  Cyclopaedia,  ii,  432;  Miller, 
Lectures,  349,  487. 

129.  The  Rights  of  the  Individual  and  the  Community. — 
That  the  community  also  has  rights  is  a  fact  that  is  not 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  227 

always  kept  distinctly  in  mind.  The  struggle  of  the  in- 
dividual citizen  to  secure  a  recognition  of  his  rights  has 
been  so  long  and  absorbing  that  now,  when  his  purpose  is 
attained,  he  appears  sometimes  unmindful  of  any  pre- 
tensions other  than  his  own.  The  laws  of  the  United  States, 
however,  in  many  places  proclaim  the  superior  rights  of  the 
community.  The  individual  citizen  has  attained  the  right 
to  worship  in  accordance  with  the  dictates  of  his  conscience; 
but  when  in  the  enjoyment  of  this  hberty  he  institutes 
practices  that  seem  to  the  State  subversive  of  the  best 
interests  of  the  community,  the  rights  of  the  community  are 
asserted  to  the  limitation  of  the  freedom  of  the  individual. 
If  a  community  is  convinced  that,  in  order  to  attain  its 
highest  well-being,  polygamy  should  not  be  practiced,  it 
bases  on  this  fact  its  right  to  overrule  and  set  aside  this 
practice  or  any  other  practice  in  conflict  with  this  convic- 
tion, even  though  such  practice  has  the  sanction  of  religious 
ideas.  Furthermore,  private  property  and  the  right  of  the 
individual  citizen  to  hold  it  are  guarded  and  hedged  about 
by  the  organized  forces  of  the  community  as  if  their  main- 
tenance were  the  one  paramount  object  of  the  State;  yet, 
whenever  any  private  property  is  demanded  for  the  use  of 
the  public,  the  individual  citizen's  rights  yield  before  the 
rights  of  the  community.  This  is  seen  in  the  application  of 
the  law  of  eminent  domain. 

Topics. — Rights  of  the  community. — Danger  of  neglecting 
community  rights. — Limitation  of  rights  claimed  under  religious 
liberty. — Right  of  eminent  domain. 

References. — Dawes,  How  We  Are  Governed,  20S-29G;  Ford, 
American  Citizen's  Manual,  Part  II,  1-3;  Hart,  Actual  Govern- 
ment, 19-2G;  Lalor,  Cyclopa'dia,  ii,  141;  iii,  1G2;  Lowell,  Essays, 
GO-117. 

130.  Eminent  Domain, — The  right  of  the  Government 
to  take  property  for  public  use  on  making  compensation 


228      THE   GOVERNMENT   OF  THE   UNITED  STATES 

for  it  at  a  valuation  fixed  by  agents  of  the  Government  is 
called  the  right  of  eminent  domain.  Under  those  govern- 
ments where  in  theory  the  property  is  held  by  grant  from 
the  sovereign,  the  exercise  of  the  right  of  eminent  domain 
may  be  regarded  as  the  act  of  taking  back  the  property 
originally  granted.  It  is  presumed  under  this  theory  that 
the  sovereign,  in  making  the  grant,  necessarily  by  reason  of 
his  sovereignty  reserved  the  capacity  to  revoke  it.  Essen- 
tially the  same  result  is  reached  under  a  republican  form  of 
government,  but  the  theory  of  the  operation  is  different. 
The  republic  proclaims  a  public  need  and  benefit,  and  as- 
serts the  superior  right  of  the  community.  The  Constitu- 
tion presumes  this  right  to  exist  in  a  sovereign  government, 
and  subjects  it  to  regulation  in  the  United  States  by  declar- 
ing that  private  property  shall  not  be  taken  for  public  use 
without  just  compensation.  To  take  land  or  other  property 
under  this  right  is  to  condemn  it.  This  right  is  most  fre- 
quently exercised  in  taking  lands  for  roads,  railroads,  canals, 
or  parks;  but  other  forms  of  property  may  be  reached  by  it 
when  it  appears  that  they  are  needed  for  some  public  use. 

The  power  to  take  property  under  this  right  may  be  said 
to  belong  primarily  to  the  States,  since  they  "  are  expected 
to  make  provision  for  the  conveniences  and  necessities  of 
public  travel,  and  for  the  other  wants  of  the  general  public, 
and  of  the  State  itself";  yet  for  all  national  purposes  the 
power  may  be  exercised  by  the  Government  of  the  United 
States.  In  the  relation  of  the  Territory  to  the  right  of  emi- 
nent domain,  we  observe  a  distinction  between  the  State 
and  the  Territory,  since  in  the  Territory  the  right  of  eminent 
domain  belongs  to  the  Federal  Government.  When,  how- 
ever, the  Territory  becomes  a  State,  the  right  passes  with 
all  its  incidents  to  the  new  organization — that  is,  to  the 
State. 

The  exercise  of  this  right  by  the  Government  is  distin- 
guished from  taxation  in  that  taxes  are  contributions  which 


RIGHTS  AxND   PRIVILEGES   OF  CITIZENS  229 

the  citizen  makes  toward  the  maintenance  of  the  Govern- 
ment under  a  general  law;  while  property  taken  under  the 
right  of  eminent  domain  is  required  of  particular  persons, 
and  similar  requirements  are  not  necessarily  made  from 
other  members  of  the  community.  Because  it  is  a  special 
demand  in  no  way  equalized  with  the  demands  made  on 
other  citizens,  justice  requires  that  compensation  should  be 
made  for  property  thus  appropriated. 

Some  of  the  purposes  for  which  the  Government  causes 
private  property  under  this  right  to  be  appropriated  are 
easily  recognizable  as  public.  Among  these  are  the  con- 
struction of  fortresses,  lighthouses,  piers,  docks,  military 
roads,  and  public  buildings.  But  it  is  not  easy  to  distin- 
guish clearly  between  those  purposes  which  are  public  and 
those  which  are  not  public.  The  decision  of  this  question 
in  every  case  rests  with  the  Government.  The  Govern- 
ment voices  the  needs  of  the  nation  or  the  community  and 
decides  with  reference  to  any  particular  piece  of  property 
whether  it  is  or  is  not  required  to  satisfy  those  needs.  The 
property  that  is  thus  subject  to  condemnation  and  appro- 
priation is  not  merely  land  and  other  forms  of  real  estate, 
but  any  kind  of  property  protected  by  the  laws  of  the  United 
States. 

In  proceeding  under  this  power  to  take  possession  of 
property  required  for  public  purposes,  the  Government 
usually  attempts  to  make  an  agreement  with  the  owner  as 
to  the  compensation  to  be  paid,  and,  failing  in  tliis,  resorts 
to  the  method  prescribed  by  law;  and  to  this  end  provides 
an  impartial  tribunal  to  assess  the  amount  of  damage  that 
will  n^sult  to  the  owner  in  being  deprived  of  the  property  in 
question.  The  property  appropriated  may  be  used  im- 
mediately by  the  State,  or  a  corporation  created  by  law  to 
render  some  public  service  may  be  empowered  to  appropriate 
it  for  the  specified  purpose.  Thus  a  railroad  company,  to 
cite  a  single  familiar  illustration,  organized  to  render  the 


230      THE   GOVERNMENT   OF  THE   UNITED   STATES 

services  of  a  common  carrier,  may  be  authorized  by  the 
Legislature  to  condemn  land  to  be  used  by  it  for  its  roads. 

Topics. — Define  the  right  of  eminent  domain. — Theory  of  this 
right  in  the  Republic— Attitude  of  the  Constitution  toward  this 
right. — For  what  purposes  most  frequently  exercised. — How  exer- 
cised in  a  Territory. — Compared  with  taxation. — Decision  as  to 
when  it  may  be  exercised. — Method  of  proceeding  in  the  exercise 
of  this  right. 

References.— Fiske,  Civil  Government,  4;  Ford,  American 
Citizen's  Manual,  Part  II,  14;  Cooley,  Constitutional  Law,  331-342. 

131.  The  Right  to  Assemble  and  the  Right  to  Petition.— 
Popular  government  presumes  that  the  people  shall  have 
the  right  to  assemble  and  the  right  to  petition  the  public 
authorities  for  a  redress  of  grievances.  These  rights  were 
secured  to  the  people  of  the  United  States  by  the  first  amend- 
ment to  the  Constitution.  The  term  "people,"  when  it  is 
said  that  the  people  elect  the  officers  whose  election  is  pro- 
vided for  by  law,  embraces  only  those  persons  who  have  the 
privilege  of  voting,  or,  in  other  words,  those  who  enjoy 
political  rights.  But  as  used  here,  it  comprehends  all 
members  of  the  nation,  those  who  enjoy  only  civil  rights  as 
well  as  those  who  enjoy  both  civil  and  political  rights. 
Whether  voters  or  not,  they  may  assemble  and  may  petition 
the  Government  for  such  changes  in  legislation  or  adminis- 
tration as  may  seem  to  them  desirable.  The  right  to  as- 
semble is  understood  to  carry  with  it  the  right  to  discuss 
questions  of  common  or  public  interest.  They  may  be  re- 
ligious questions,  political  questions,  questions  of  moral  or 
industrial  reforms,  or  any  other  matters  relating  to  the 
organization  or  welfare  of  society.  The  conclusions  reached 
by  such  assemblies  may  relate  simply  to  the  affairs  of  private 
associations  with  which  the  Government  is  not  immediately 
concerned;  or  they  may  deal  with  subjects  in  which  the 
legislative  or  executive  authority  is  vitally  interested.     In 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  231 

the  latter  case  they  may  exert  more  or  less  influence  in 
modifying  the  laws  or  changing  the  administrative  policy. 
Important  social  or  political  reforms  have  sometimes  their 
beginnings  in  the  df?liberations  of  private  associations,  so 
that  in  guaranteeing  the  right  to  assemble,  the  Constitution 
has  established  conditions  favorable  to  the  moral  and  legal 
progress  of  society.  When,  however,  assemblies  assume 
the  character  of  riotous  meetings  tending  to  impede  the 
operation  of  the  normal  and  beneficent  forces  of  social 
growth,  and  thus  to  check  the  progress  of  the  nation  or  of 
any  part  of  it,  they  have  forfeited  their  claim  to  govern- 
mental protection;  for  their  conduct  and  influence  are  in- 
consistent with  the  purposes  of  government. 

Topics. — The  right  to  assemble. — The  right  to  petition. — Ad- 
vantages and  limitations  of  these  rights. 

References.— Dawes,  How  We  Are  Governed,  309,  310;  Ford, 
American  Citizen's  Manual,  Part  II,  6;  Hinsdale,  American  Govern- 
ment, 352;  Lalor,  Cyclopcedia,  iii,  IG9. 

132.  Freedom  of  Speech  and  of  the  Press. — The  right  to 
assemble  is  not  of  great  importance  unless  it  is  accompanied 
by  the  right  of  free  speech  and  of  free  publication.  Free- 
dom of  speech  and  of  the  press,  as  it  exists  in  the  United 
States,  was  established  through  the  common  law.  The  in- 
habitants of  the  colonies  enjoyed  this  freedom  before  the 
formation  of  the  Federal  Government.  It  is  defined  as 
"the  liberty  to  utter  and  publish  whatever  the  citizen  may 
choose,  and  to  be  protected  against  legal  censure  and  punish- 
ment in  so  doing,  provided  the  publication  is  not  so  far 
injurious  to  public  morals  or  to  private  reputation  as  to  be 
condemned  by  the  common-law  standards,  by  which  de- 
famatory publications  were  judged  when  this  freedom  was 
thus  made  a  constitutional  right.  And  freedom  of  speech 
corresponds  to  this  in  the  protection  it  gives  to  oral  publica- 
tions."    The   Constitution   assumes   the   existence  of  this 


232      THE   GOVERNMENT  OF  THE  UNITED  STATES 

liberty  and  provides  that  Congress  shall  make  no  law 
abridging  the  freedom  of  speech  or  of  the  press.  Therefore, 
the  inhabitants  of  the  United  States  under  the  Constitution 
enjoy,  in  this  respect,  whatever  measure  of  liberty  was 
enjoyed  by  the  inhabitants  of  the  colonies  before  the  adop- 
tion of  the  Constitution.  In  order  to  discover  the  extent 
and  nature  of  this  liberty,  one  must  examine  the  provisions 
of  the  common  law  concerning  it.  There  are,  however, 
certain  cases  of  privilege  to  which  this  law  does  not  apply. 
Under  the  law  there  are  two  classes  of  cases,  or  two  classes 
of  utterances  that  are  privileged.  The  privilege  in  one 
class  of  cases  is  absolute;  that  is  to  say,  such  cases  are  com- 
pletely exempt  from  the  restrictions  of  the  law  regulating 
freedom  of  speech  and  of  the  press.  The  cases  of  absolute 
privilege  are: 

1.  Utterances  by  members  of  Congress  in  any  speech  or 
debate  in  either  house. 

2.  The  testimony  given  by  a  witness  in  the  course  of 
judicial  proceedings. 

3.  Statements  by  a  juror  in  the  jury  room  concerning 
the  witnesses  or  the  parties  in  the  case. 

4.  Complaints  of  criminal  actions  made  in  order  to  bring 
the  supposed  criminal  to  trial,  as  also  the  preliminary  in- 
formation for  the  instruction  of  the  officers  of  the  court. 

5.  The  pleadings  and  other  papers  prepared  for  the  trial, 
in  so  far  as  their  statements  relate  to  the  matter  in  contro- 
versy. 

6.  The  official  utterances  of  the  President  of  the  United 
States,  the  governors  of  the  States,  the  judges  of  the  courts, 
and  all  officers  performing  judicial  functions. 

7.  The  remarks  of  persons  presenting  a  case  before  a 
court,  when  confined  to  the  matter  of  the  case  in  hand  and 
not  uttered  for  the  purpose  of  detraction  and  abuse. 

8.  Truthful  reports  of  proceedings  in  legislative  bodies, 
in  their  committees,  and  in  the  courts,  provided  always  that 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  233 

these  reports  are  confined  to  the  proceedings  and  do  not 
introduce  defamatory  statements  not  contained  in  the  pro- 
ceedings themselves. 

In  the  other  class  of  cases  of  privilege,  the  exemption 
from  the  restraints  of  the  law  is  conditional  and  is  dependent 
on  motive.     The  most  conspicuous  of  such  cases  are: 

1.  Criticism  of  officers  of  the  Government  and  of  candi- 
dates for  office.  The  reason  of  this  exemption  lies  in  the  fact 
that  the  citizens  should  know  the  qualities  of  the  officers 
in  charge  of  their  affairs  and  the  qualities  of  those  who  are 
presented  as  candidates  for  office.  This  criticism  is  legiti- 
mate and  privileged,  provided  the  critic  speaks  of  what  he 
knows  or  believes,  has  only  the  public  interest  in  view,  and 
speaks  without  malice. 

2.  Discussion  of  public  affairs.  Popular  government 
is  in  a  large  measure  guided  by  public  discussion,  and  in 
order  that  this  discussion  may  be  as  completely  impartial  as 
possible  and  free  from  the  directing  hand  of  official  author- 
ity, it  is  exempted  from  legal  restraints  as  long  as  it  is  con- 
ducted with  moderation  and  with  a  view  to  the  public  wel- 
fare. From  fear  lest  there  should  be  an  appearance  of 
official  dictation,  the  liberty  which  it  was  proposed  to  con- 
firm in  this  matter  has  sometimes  been  allowed  to  degen- 
erate into  an  unwholesome  license. 

3.  Reviews  of  books,  magazines,  and  pamphlets.  It  is 
presumed  that  if  publications  of  this  kind  are  such  as  ought 
to  be  issued,  no  injury  will  be  done  by  presenting  their  dis- 
tinguishing characteristics;  and  if  they  are  not  such  as  ought 
to  be  issued,  some  good  may  be  done  by  hastening  their  ex- 
termination. 

The  restriction  in  cases  where  there  is  a  conditional  ex- 
emption is  applied  through  the  courts.  If  a  person  thinks 
himself  injured  by  a  given  publication,  he  may  bring  suit 
for  damages;  but  no  damages  will  be  awarded  if  it  is  shown 
in  the  defense  that  onl}^  the  truth  about  the  plaintiff  has 
16 


234      THE   GOVERNMENT   OF  THE   UNITED  STATES 

been  published.  When,  however,  a  criminal  prosecution 
is  instituted  on  the  charge  that  the  specified  publication  is 
injurious  to  society,  proof  that  only  the  truth  has  been 
published  is  not  an  adequate  defense;  for  although  a  pub- 
lisher may  have  confined  himself  to  well-ascertained  facts 
about  a  certain  person  or  certain  persons,  yet  these  facts 
may  be  of  such  a  character  as  to  make  their  publication  a 
crime  against  society.  The  injury  complained  of  in  this 
instance  is  an  injury  to  the  pubhc;  "and  when  private 
reputation  and  conduct  are  needlessly  dragged  before  the 
public  to  the  disturbance  of  the  peace  of  society,  the  public 
injury  may  be  as  great  when  only  the  truth  is  spoken,  as 
when  the  publication  is  wholly  untrue.  The  truth,  there- 
fore, is  not  in  all  cases  a  defense  to  a  prosecution  for  criminal 
libel;  but  the  publisher,  in  addition  to  the  truth,  must  show 
that  he  made  the  publication  with  good  motives  and  for 
justifiable  ends."i 

Topics. — Freedom  of  speech  defined. — Existence  of  this  free- 
dom assumed  by  the  Constitution. — Determined  by  the  common 
law. — Cases  of  absolute  privilege. — Cases  where  exemption  from 
restraint  depends  on  motive. — Redress  through  the  courts. 

References. — Bryce,  American  Commonivealth,  ii,  350;  Dawes, 
How  We  Are  Governed,  306;  Ford,  American  Citizen's  Manual, 
Part  II,  8;  Hinsdale,  American  Government,  352;  Hart,  Actual 
Government,  28;  Lalor,  Cyclopaedia,  iii,  319. 

133.  The  Right  to  Vote. — The  right  to  vote  is  the  right 
to  participate  in  the  political  affairs  of  the  nation.  This 
right  is  created  by  law.  Of  late  it  has  been  frequently 
'  affirmed  that  it  is  a  natural  right.  A  person  who  holds  this 
opinion,  however,  finds  that  it  is  the  positive  law  of  the 
nation  to  which  he  belongs  that  includes  him  among  those 
on  whom  it  confers  this  power,  or  excludes  him  from  them. 

^  Cooley,  Constitutional  Law,  280. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  235 

In  this  view  of  the  case  the  doctrine  that  the  right  to  vote 
is  a  natural  right  docs  not  appear  to  have  great  practical 
significance.  As  a  matter  of  fact,  wherever  this  power  is 
held,  it  exists  under  a  definite  legal  provision  which  holds  no 
necessary  relation  to  the  alleged  natural  right.  The  right 
to  vote  is  conferred  not  primarily  for  the  benefit  of  the  in- 
dividual citizen.  The  benefit  that  comes  to  him  comes 
largely  through  the  improvement  of  the  community  in  which 
he  exercises  this  right.  If,  therefore,  there  are  certain  per- 
sons whose  influence,  if  they  w^ere  endowed  with  this  power, 
would  be  detrimental  to  the  welfare  of  society,  the  state 
that  is  wisely  conducted  will,  if  possible,  so  frame  the  law 
of  suffrage  as  to  exclude  them  from  the  enjoyment  of  this 
privilege. 

In  the  United  States  it  is  the  several  States  that  deter- 
mine who  shall  vote.  In  this  matter  they  act  without  any 
restraint  or  limitation,  except  that  imposed  by  the  fifteenth. 
amendment  to  the  national  Constitution,  which  prevents 
them  from  denying  or  abridging  the  right  of  any  citizen  of 
the  United  States  to  vote  on  "account  of  race,  color,  or 
previous  condition  of  servitude."  In  Federal  as  well  as  in 
State  elections  only  those  persons  are  entitled  to  vote  to 
whom  the  right  has  been  given  by  a  State  law,  and  this  law 
is  usually  the  State  constitution.  The  specific  regulations 
under  which  this  right  is  exercised  are  prescribed  by  the 
legislature  of  the  State.  Important  among  such  regula- 
tions is  that  which  requires  a  registration  of  all  voters  l)o- 
fore  the  day  of  election.  The  various  measures  of  detail 
respecting  the  methods  of  voting,  the  form  of  the  ballot, 
notices  of  the  time  of  the  election,  and  the  manner  of  in- 
dicating the  will  of  the  voter  on  the  ballot  also  are  prescribed 
by  the  legislature. 

In  conferring  the  right  to  vote,  the  State  legislative 
power  acts  arbitrarily.  It  presumes  no  natural  riglit  to 
vote.     It  recognizes  only  such  restrictions  as  are  imposed 


236      THE  GOVERNMENT  OF  THE  UNITED  STATES 

by  the  Federal  Constitution.  In  the  beginning  of  the  cen- 
tury it  was  provided  in  some  of  the  States  of  the  South 
that  the  voter  must  have  a  certain  educational  qualification. 
This  would  exclude  both  the  ignorant  negro  and  the  ignorant 
white  man.  In  this  the  law  was  general.  Then  an  excep- 
tion was  made  of  all  those  persons  whose  grandfathers,  or 
whose  ancestors  before  a  certain  date,  had  had  the  right  to 
vote.  This  exception  also  was  general;  but  under  it  the 
ignorant  white  man  and  not  the  ignorant  negro  might  vote. 

Topics. — Right  to  vote  created  by  law. — The  view  that  it  is  a 
'natural"  right. — Aim  in  conferring  the  right. — Determination  of 
the  right  in  the  United  States. — The  fifteenth  amendment. — Regu- 
lations for  voters. — Restrictions  in  the  South. 

References. — Bryce,  American  Commonwealth,  i,  419,  484; 
Dawes,  How  We  Are  Governed,  324;  Hart,  Practical  Essaya,  20-57; 
Miller,  Lectures,  661. 

134.  Equality. — In  some  countries  it  has  been  thought 
3xpedient  to  have  different  laws  for  the  different  social 
classes,  but  in  the  United  States  all  laws  are  enacted  to 
apply  equally  to  all  members  of  the  nation.  All  persons 
enjoying  civil  rights  enjoy  the  same  civil  rights,  and  all 
persons  enjoying  political  rights  enjoy  the  same  political 
rights.  This  is  what  is  meant  when  it  is  affirmed  that  under 
the  Government  of  the  United  States  all  men  are  equal. 
From  certain  other  points  of  view  they  appear  to  be  unequal. 
As  regards  their  physical  or  mental  powers,  their  oppor- 
tunities or  their  wealth,  their  power  and  the  actual  influence 
they  exert  in  directing  the  public  affairs  of  the  nation,  they 
are  unequal;  and  some  forms  of  inequality  tend  to  increase 
as  society  grows  from  the  simple  to  the  more  complex  state. 
But  it  is  the  purpose  of  the  Government  to  maintain  equality 
before  the  law.  To  prevent  any  State,  in  exercising  its 
legislative  power,  from  violating  this  purpose,  the  four- 
teenth amendment  to  the  Constitution  provides  that  "  no 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  237 

State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
law,"  There  are,  however,  certain  privileges  which,  when 
once  granted,  cannot  be  enjoyed  by  others.  These  are  in- 
volved in  franchises  given  to  individual  or  corporate  persons 
to  do  what,  in  the  nature  of  things,  can  be  done  only  by  a 
few  persons.  When  such  a  privilege  is  granted,  it  is  pre- 
sumed that  the  business  to  be  performed  is  important  for 
the  general  welfare,  and  that  it  can  be  more  efficiently  done 
under  an  exclusive  franchise  than  in  any  other  way.  In 
this  case,  as  in  the  case  of  certain  ministerial  officers  whose 
services  are  necessary  to  the  general  w^elfare,  the  supreme 
governmental  authority  is  expected  to  select  the  agency 
that  appears  to  be  the  most  efficient  for  the  attainment  of 
the  result  required. 

Topics. — Indications  of  equality  in  the  United  States. — Signs 
of  inequalitj' . — Aim  of  the  Government  in  this  matter. — The  four- 
teenth amendment. — Privileges  that  are  necessarily  monopolies. 

References. — Bryce,  American  CommonweaUh,  ii,  744-747; 
Ford,  American  Citizen's  Manual,  Part  II,  17,  IS;  Hart,  Actual 
Government,  32. 

135.  Nature  and  Liberty. — An  appeal  is  sometimes  made 
to  nature  as  offering  an  argument  in  favor  of  liberty;  but 
the  term  "nature"  is  so  vague  that  such  an  appeal  bears 
no  very  definite  meaning.  If  it  is  affirmed  that  man  ought 
to  be  free  because  freedom  is  his  natural  inheritance,  the 
assumption  on  which  the  affirmation  rests  is  not  sufficiently 
well  established  to  make  it  the  basis  of  a  valid  argument. 
It  is  nearer  the  truth  to  say  that  man  inherits  a  position  of 
dependence,  and  that  the  striving  of  the  individual  in  his 
development,  as  of  the  race  in  its  development,  is  toward 


238      THE   GOVERNMENT   OF  THE   UNITED   STATES 

liberty.  The  liberty  which  we  think  of  in  connection  with 
society  is  not  a  natural  condition,  but  it  is  acquired  as  a 
result  of  progress  under  an  enlightened  government.  With- 
in the  meaning  of  the  term  we  recognize  civil  liberty  and 
political  liberty,  both  defended  by  authority  under  the 
provisions  of  law.  Any  form  of  liberty  that  is  conceived  to 
exist  not  under  law  is  only  the  liberty  of  the  wild  beast.  It 
means  merely  that  the  possessor  of  it  may  take  for  his  own 
enjoyment  anything  which  he  is  not  prevented  from  taking 
by  the  limitations  of  his  agility,  courage,  strength,  or  cun- 
ning. This  form  of  liberty,  since  it  is  conceived  of  as  under 
no  law,  must  be  found,  if  anywhere,  without  the  limits  of 
the  social  organization.  True  liberty  appears  only  when 
government  arises  to  protect  the  individual  person  in  the 
possession  of  his  property,  to  defend  him  from  the  en- 
croachments and  assaults  of  his  fellows,  and  to  secure  him 
in  the  enjoyment  of  all  those  advantages  which  tend  to  his 
intellectual  emancipation  and  development. 

Topics. — "Liberty  by  nature." — Liberty  a  result  of  enlighten- 
ment.— Liberty  under  law  or  liberty  of  the  wild  beast. 

References. — Lowell,  Essays,  136-189;  Cooley,  Constitutional 
Law,  221-226. 

136.  Civil  and  Political  Liberty. — Civil  liberty  is  a  con- 
dition in  which  the  individual  members  of  a  society  enjoy 
such  rights,  and  are  under  such  obligations,  as  permit  them 
to  seek  effectively  their  own  advantage,  and  prevent  their 
actions  from  becoming  injurious  to  other  persons,  or  im- 
peding social  progress.  Political  liberty  may  be  said  to 
exist  in  a  community  when  the  individual  members  of  that 
community  possess  the  right  to  take  part  in  making  the 
laws.  Civil  liberty  may  exist  without  political  liberty,  but 
the  enjoyment  of  political  liberty  by  a  large  part  of  the 
community  appears  to  be  the  surest  guarantee  of  the  con- 
tinuance of  civil  liberty. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  239 

Topics. — Definition  of  civil  liberty.— Political  liberty. 
References.— Hart,  Actual  Government,  23-33;  Cooley,  Consti- 
tutional Law,  221-226. 

137.  Religious  Liberty. — The  establishment  of  religious 
liberty  is  one  of  the  important  steps  taken  by  the  founders 
of  the  American  Government.  It  was  especially  important 
on  account  of  its  influence  in  emancipating  the  thought  of 
the  people,  and  in  making  them  really  free.  The  original 
constitutional  provisions  touching  this  subject  were  only 
limitations  on  the  powers  of  Congress.  The  first  of  these 
provisions  declared  that  "no  religious  test  shall  ever  be 
required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States";  the  second,  that  "Congress  shall  make 
no  law  respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof."  Notwithstanding  these  provi- 
sions, the  several  State  governments  were  free  to  take  such 
action  with  respect  to  religion  as  seemed  to  them  desirable. 
But  the  attitude  assumed  in  the  Constitution  expressed  the 
views  of  the  citizens  of  the  States;  and  these  views  deter- 
mined the  action  of  the  States,  which  have  without  excep- 
tion established  constitutional  guarantees  of  religious  free- 
dom. These  guarantees  appear  to  protect  adequately  the 
individual  citizen  in  worshiping  as  his  conscience  or  his 
taste  may  dictate.  The  following  is  a  general  statement  of 
the  constitutional  guarantees  of  the  States: 

"  1.  They  established  a  system,  not  of  toleration  merely, 
but  of  religious  equality.  All  religions  arc  equally  respected 
by  the  law:  one  is  not  to  be  favored  at  the  expense  of  others, 
or  to  be  discriminated  against;  nor  is  any  distinction  to  be 
made  between  them,  either  in  the  laws,  in  positions  under 
tlie  law,  or  in  the  administration  of  the  government.. 

"2.  They  exempt  all  persons  from  compulsory  support 
of  religious  worship,  and  from  compulsory  attendance  upon 
the  same. 


240      THE   GOVERNMENT  OF  THE   UNITED  STATES 

"3.  They  forbid  restraints  upon  the  free  exercise  of 
religion  according  to  the  dictates  of  conscience,  or  upon  the 
free  expression  of  rehgious  opinions." 

Topics. — Original  constitutional  provision  touching  religious 
liberty.— Position  of  the  State  governments  m  this  matter.— State 
constitutional  guarantees. 

References.— Dawes,  How  We  Are  Governed,  303;  Ford, 
American  Citizen's  Manual,  Part  II,  11 ;  Hinsdale,  American  Govern- 
ment, 352,  353;  Hart,  Actual  Government,  27. 

138.  "  Due  Process  of  Law  "  and  "  Law  of  the  Land."— 

The  phrase,  "due  process  of  law,"  as  it  appears  in  the  four- 
teenth amendment  has  essentially  the  same  meaning  as  the 
phrase,  ''law  of  the  land."  In  setting  forth  the  meaning  of 
this  phrase,  jurists  have  shown  that  it  is  not  always  synony- 
mous with  a  legislative  act.  Webster  said:  "Everything 
which  may  pass  under  the  forms  of  an  enactment  is  not  to 
be  considered  the  law  of  the  land.  If  this  were  so,  acts  of 
attainder,  bills  of  pains  and  penalties,  acts  of  confiscation, 
acts  reversing  judgments,  and  acts  directly  transferring  one 
man's  estate  to  another,  legislative  judgments,  decrees,  and 
forfeitures  in  all  possible  forms,  would  be  the  law  of  the 
land."  According  to  Justice  Story,  "due  process  of  law" 
means  such  an  exercise  of  the  powers  of  government  as  the 
settled  maxims  of  law  permit  and  sanction.  When,  for 
instance,  a  citizen  has  been  charged  with  an  offense  which 
places  his  life  and  liberty  in  question,  it  is  required  that  he 
shall  be  dealt  with  by  due  process  of  law;  that  is  to  say, 
there  must  be  judicial  proceedings;  there  must  be  an  accusa- 
tion, a  hearing  before  an  impartial  tribunal,  with  proper 
jurisdiction;  and  there  must  be  a  conviction  and  judgment 
before  the  punishment  can  be  inflicted,  "i 

"  By  the  '  law  of  the  land '  is  most  clearly  intended  the 
general  law— a  law  which  hears  before  it  condemns,  which 

1  Story,  On  the  Constitution,  4th  ed.,  §  1943. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  241 

proceeds  upon  inquiry,  and  renders  judgment  only  after 
trial.  The  meaning  is  that  every  citizen  shall  hold  his  life, 
liberty,  property,  and  immunities  under  the  protection  of 
the  general  rules  which  govern  society."  ^ 

Topics. — Meaning  of  plirase,  "due  process  of  law." — Meaning  of 
"law  of  the  land." 

References. — Goodiiow,  Comparative  Administrative  Law,  ii, 
116;  Hinsdale,  American  Government,  310,  363;  Lowell,  Essays,  85; 
Miller,  Lectures,  664-666;  Webster's  Works,  v,  487;  Story,  On  the 
Constitution,  fourth  edition,  §  §  1943-1946. 

139.  "A Man's  House  Is  his  Castle." — Not  the  least  im- 
portant of  the  rights  enjoyed  by  citizens  of  the  United  States 
is  the  right  to  hold  their  houses  free  from  unregulated  in- 
vasion either  by  the  Government  or  by  private  persons. 
The  third  and  fourth  amendments  to  the  Constitution  deal 
directly  with  this  subject.  The  third  amendment  provides 
that  "  no  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law."  This  provision 
was  framed  not  to  set  aside  any  evil  existing  at  the  time  it 
was  adopted,  but  to  prevent  the  revival  of  a  practice  which 
had  formerly  been  used  as  a  means  of  oppression.^ 

This  practice  "at  best  ...  is  an  arbitrary  proceeding; 
it  breaks  up  the  quiet  of  home;  it  appropriates  the  property 
of  the  citizen  to  the  public  use  without  previous  compensa- 
tion, and  without  assurance  of  compensation  in  the  future, 
unless  the  law  shall  have  promised  it.  It  is  difficult  to 
imagine  a  more  terrible  means  of  oppression  than  would  be 
the  power  in  the  executive,  or  in  the  military  commander, 
to  fill  the  house  of  an  obnoxious  person  with  a  company  of 
soldiers,  who  shall  be  fed  and  warmed  at  his  expense,  under 
the  direction  of  an  officer  accustomed  to  the  exercise  of 

»  Webster.  Works,  v,  487.  2  g^e  §§  126,  127. 


242      THE   GOVERNMENT  OF  THE   UNITED  STATES 

discretionary  authority  within  the  Umits  of  his  command, 
and  in  whose  presence  the  ordinary  laws  of  courtesy,  not 
less  than  the  rules  of  law  which  protect  person  and  property, 
may  be  made  to  bend  to  whim  or  caprice."  ^ 

However  effective  for  oppression  may  be  the  power  to 
quarter  soldiers  in  a  private  house  without  the  consent  of 
the  owner,  the  ordinary  citizen  sees  a  greater  danger  in  the 
liability  of  having  the  privacy  of  his  house  invaded  either 
by  private  persons  or  by  officers  of  the  law  under  the  pre- 
text of  making  an  official  search  of  the  premises.     To  defend 
him  against  this  danger,  the  fourth  amendment  was  adopted. 
It  declares  that  "  the  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated;  and  no  warrants 
shall  issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,   and   particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. "     The  point 
of  vital  importance  in  this  matter  is  the  distinction  between 
reasonable  and  unreasonable  searches.     In  order  that  a 
search  may  be  considered  reasonable  and  thus  be  permitted 
under  the  law,  it  is  required  that  a  warrant  shall  be  issued  by 
a  properly  empowered  magistrate  to  an  officer  authoriz'jd 
to  serve  it.     Before  the  warrant  is  issued,  the  magistrate 
must  receive  satisfactory  evidence  that  facts  exist  justify- 
ing its  issue  under  the  law;  and  the  place  to  be  searched, 
together  with  the  persons  or  things  sought,  must  be  pointed 
out.     The  warrant  must  contain  a  particular  description 
of  the  persons  or  things  desired  and  the  place  to  be  searched. 
Ordinarily  any  search  made  without  a  warrant  complying 
with  these  conditions  will  be  regarded  as  unreasonable  and 
prohibited  by  law;   but  conditions  may  exist  under  which 
without  a  warrant  a  man's  house  may  be  forcibly  entered. 
This  may  be  done  for  the  sake  of  arresting  a  person  for 


'  Coolcy,  Constitutional  Law,  209. 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  24 


treason,  felony,  or  breach  of  the  peace,  when  it  is  known 
that  he  is  concealed  therein.  It  may  be  done  also  in  certain 
other  cases;  but  generally  the  owner  may  forcibly  prevent 
any  person  not  having  the  proper  warrant  from  entering 
and  may,  if  necessary,  carry  his  defense  even  to  taking  the 
life  of  the  intruder. 

The  fact  that  a  warrant  describes  specifically  the  persons 
or  things  sought  and  the  place  to  be  searched  prevents  it 
from  becoming  an  instrument  of  oppression.  Formerly  in 
England  a  general  ivarrant  was  issued,  which  neither  named 
nor  described  the  person  to  be  arrested  nor  defined  the  place 
to  be  searched.  This  form  of  warrant  gave  the  ministerial 
officer  full  discretion  as  to  the  person  or  persons  who  might 
be  taken,  and  unlimited  authority  with  respect  to  places  that 
might  be  searched.  Warrants  of  this  kind,  inasmuch  as 
they  convey  unrestricted  power  within  certain  limits,  were 
almost  always  followed  by  acts  of  oppression;  and  the 
practice  of  issuing  them  was  a  grievance  of  which  the  people 
complained.  They  are  no  longer  used,  and  since  the  de- 
cision in  Wilkes's  case  ^  they  have  been  held  to  be  illegal. 
But  in  a  few  exceptional  cases  a  peace  officer  may  make 
arrests  without  a  warrant. 

Topics. — Freedom  from  unregulated  invasion. — Practice  of 
quartering  soldiers  in  private  houses. — Invasion  of  one's  house  by 
private  persons. —  Fourth  amendment. —  Reasonable  and  unrea- 
sonable searches. — Definition  of  a  warrant. — Forcible  entry  of  one's 
house. — General  warrant. 

References. — Ford,  American  Citizoi's  Manual,  Part  II,  15, 
IG;  Hinsdale,  American  Government,  354. 

'  John  Wilkes  was  arrested  on  a  general  wan-ant  for  "a  false,  scan- 
dalous, and  seditious  libel  "  in  1703.  Later  he  was  released  in  virtue  of 
his  privilege  as  a  member  of  Parliament.  Sulisoquonlly  lie  was  .sovend 
times  re-elected  and  expelled.  His  final  triumph  established  the  privi- 
leges of  members  and  the  right  of  electors  to  select  their  representatives 
freely. 


244      THE   GOVERNMENT   OF  THE   UNITED   STATES 

140.  Slavery. — The  progress  of  slavery  and  the  discus- 
sion of  its  legal  aspects  were  for  several  decades  conspicuous 
features  of  the  political  life  of  the  nation.  The  Civil  War 
and  the  adoption  of  the  thirteenth  amendment  introduced 
a  new  period.  Slaves  became  free  and  acquired  the  rights  of 
citizens.  The  Louisiana  civil  code  before  the  emancipation 
thus  defined  a  slave  as  he  was  then:  "He  is  one  who  is  in 
the  power  of  a  master  to  whom  he  belongs.  The  master  may 
sell  him,  dispose  of  his  person,  his  industry  and  his  labor; 
he  can  do  nothing,  possess  nothing,  nor  acquire  anything, 
but  what  must  belong  to  his  master."  The  events  relating 
to  the  origin  and  development  of  the  institution  of  slavery 
and  the  views  expressed  by  jurists  and  politicians  concern- 
ing it  are  a  part  of  the  history  of  the  United  States;  but  a 
statement  of  the  existing  Government  of  the  country  re- 
gards these  events  and  these  views  as  belonging  to  an  his- 
torical episode  that  is  closed.  Traces  of  their  influence  may 
be  discovered  in  the  present;  but  the  political  life  of  the 
nation  proceeds  now  on  the  fact  that  all  men  within  the 
jurisdiction  of  the  Government  are  free,  and  that  they  have 
been  confirmed  in  their  freedom  by  the  solemn  declaration 
of  the  nation,  uttered  in  a  constitutional  amendment. 
This  amendment  affirms  that  "neither  slavery  nor  involun- 
tary servitude,  except  as  a  punishment  for  crime  whereof 
the  party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  jurisdiction." 
Thus  from  the  position  of  chattels  subject  to  purchase  and 
sale,  slaves  have  been  advanced  to  the  position  of  free  men. 
Under  the  law  they  are  now  factors  in  the  political  life  of 
the  nation,  like  other  free  men.  But  while  all  free  men  are 
in  theory  equal  under  the  law,  they  are  not  all  equally 
powerful  in  the  exercise' of  their  common  political  rights. 
This  form  of  inequality  exists  even  among  those  whose 
ancestors  have  all  been  free.  Those  who  were  formerly 
slaves,  and  their  descendants,  are  handicapped  in  this  mat- 


RIGHTS  AND  TRIVILEGES  OF  CITIZENS  245 

ter  by  their  lack  of  cultivation  and  self-control  and  by  the 
prejudice  to  which  they  are  subjected  by  reason  of  the  ser- 
vile position  of  their  ancestors. ^ 

Topics. — Slavery  discussion. — The  Civil  War. — Definition  of 
slave. — The  thirteenth  amendment. — Phases  of  inequality. 

References. — Bryce,  American  Commonwealth,  ii,  12-16; 
Hinsdale,  American  Government,  357-307;  Lalor,  Cyclopccdia,  iii, 
725;  Macy,  Our  Govcrmnent,  207,  208. 

141.  Points  in  the   History   of  Legislation  Concerning 
Slavery. 

1787.  Constitutional  provision:  "The  migration  or  importa- 
tion of  such  persons  as  any  of  the  States  now  existing 
shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1S08;  but  a  tax  or 
duty  may  be  imposed  on  such  importation,  not  ex- 
ceeding ten  dollars  for  each  person." 

1787.  The  Ordinance  for  the  government  of  the  territory 
of  the  United  States  northwest  of  the  River  Ohio 
provided  that  "  there  shall  be  neither  slavery  nor  in- 
voluntary servitude  in  the  said  territory,  otherwise 
than  in  the  punishment  of  crimes  whereof  the  party 
shall  have  been  duly  convicted:  provided,  always,  that 
any  person  escaping  into  the  same,  from  whom  labor 
or  service  is  lawfully  claimed  in  any  one  of  the  origi- 
nal States,  such  fugitive  may  be  lawfully  reclaimed 
and  conveyed  to  the  person  claiming  his  or  her  labor 
or  service  as  aforesaid.  "^ 

1794.  Slave  trade  to  foreign  countries  was  prohibited. 

1807.  The  importation  of  slaves  was  prohibited,  the  act  to 
take  effect  on  the  first  of  Januarj^  1808. 

1820.  The  slave  trade  was  declared  to  be  piracy,  and  made 
punishable  with  death. 

1  See  §  133.  ^  Article  6. 


24G      THE   GOVERNMENT  OF  THE  UNITED  STATES. 

1S20.  The  enabling  act  for  Missouri  was  passed,  providing 
that  Missouri  might  become  a  State,  but  under  the 
condition  that  slavery  should  be  forever  excluded 
from  all  other  parts  of  the  Louisiana  Purchase  lying 
north  of  the  southern  limit  of  the  State,  or  latitude 
36°  30'. 

1854.  An  act  was  passed  organizing  the  Territories  of 
Kansas  and  Nebraska  and  providing  that  they  might 
be  admitted  as  States  at  the  proper  time  with  or 
without  slavery,  thus  setting  aside  the  provisions  of 
the  so-called  Missouri  Compromise  and  declaring  them 
void. 

1862.  The  first  proclamation  concerning  the  emancipation 
of  the  slaves  was  issued  by  President  Lincoln.  This 
was  a  call  and  a  warning.  By  it  President  Lincoln 
called  to  the  inhabitants  of  the  revolted  States  to  lay 
down  their  arms  and  return  to  the  position  of  loyal 
citizens.  Through  it  he  moreover  warned  them  that 
unless  they  resumed  their  allegiance  to  the  Govern- 
ment of  the  United  States  before  the  first  of  Janu- 
ary, 1863,  he  would  declare  their  slaves  free  men 
and  use  the  forces  of  the  army  and  the  navy  to 
uphold  this  declaration.  The  only  evident  effect 
of  this  proclamation  was  that  the  president  of  the 
Confederacy  ordered  certain  measures  of  retalia- 
tion. 

1863.  The  emancipation  proclamation  was  issued  on  Jan- 
uary 1,  1863.  This  proclamation  designated  the 
States  and  parts  of  States  in  which  it  was  to  apply, 
and  enumerated  the  places  that  were  to  remain  as 
if  it  had  not  been  issued.  It  ordered  and  declared 
"that  all  persons  held  as  slaves  within  said  desig- 
nated States  and  parts  of  States  are,  and  hencefor- 
ward shall  be,  free;  and  that  the  executive  govern- 
ment of  the  United  States,  including  the  military  and 


RIGHTS  AND  PRIVILEGES  OF  CITIZENS  247 

naval  authorities  thereof,  will  recognize  and  maintain 
tho  freedom  of  said  persons."  This  proclamation 
was  issued  not  by  virtue  of  any  power  specifically 
granted  to  the  President  by  the  Constitution,  but  "  by 
virtue  of  the  power  in  him  vested  as  commander 
in  chief  of  the  army  and  navy  of  the  United  States  in 
time  of  actual  armed  rebellion  against  the  authority 
and  government  of  the  United  States,  and  as  a  fit 
and  necessary  war  measure  for  suppressing  said 
rebellion."  The  authority  of  the  President  as  com- 
mander in  chief  did  not  extend  practically  within 
the  lines  of  the  forces  in  revolt;  but  even  if  the  status 
of  the  slaves  there  was  not  materially  affected,  the 
proclamation  was  at  least  an  announcement  that 
this  avithority  would  become  effective  as  fast  as 
territory  was  brought  within  the  lines  of  the  Federal 
forces. 

1865.  The  thirteenth  amendment  to  the  Constitution  was 
adopted,  providing  that  "neither  slavery  nor  in- 
voluntary servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction." 

1870.  The  fifteenth  amendment  to  the  Constitution  was 
adopted,  providing  that  "the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  By  any  State  on  account  of 
race,  color,  or  previous  condition  of  servitude." 

Topics. — Importation  of  slaves. — Ordinance  of   17S7. — Slave 
trade. — Enabling  act  for  Missouri. — Kansas  and  Nebraska  Bill. — 
I  Einan('ii)ation.— Thirteenth  amendment. — Fifteenth  amendment. 

References. — Bryce,  American  Commonwealth,  i,  55,  472,  475; 
Dawes,  How  We  Are  Governed,  320-324;  Hinsdale,  American 
Government,  325,  326,  332,  357-367;  Lalor,  Cyclopaedia,  \,  S3S;  iii, 
540;  Miller,  Lectnrr^,  400,  456. 


248      THE   GOVERNMENT   OF  THE   UNITED  STATES 

FOR  ADVANCED  STUDY 

Personal  Rights. — Burgess,  Political  Science,  i,  174-252; 
Cooley,  Constitutional  Law,  Chap.  IV,  §§3,  14;  Chaps,  XII-XVI; 
Cooley,  Constitutional  Limitations,  Chaps.  IX-XIII;  H.  von  Hoist, 

Constitutional  Laiv,  §§  72-78,  84-87;  Hinsdale,  American  Govern- 
ment, Chaps.  XLVII,  XLVIII. 

Liberty. — Lieber,  On  Civil  Liberty  and  Self -Government,  Chaps. 
VI,  VII;  Mill,  On  Libert]! ;  Hurd,  Law  of  Freedom  and  Bondage; 
Cooley,  Constitidional  Limitations,  Chap.  X;  Hill,  Liberty  Docu- 
ments, Chaps.  VIII,  XXI-XXIII. 

The  Development  of  Religious  Liberty. — EHot,  American 
Contributions  to  Civilization,  Nos.  1,  2,  15;  Bryce,  American  Com- 
monwealth, ii,  Chaps.  CVI,  CVII;  Leoky,  Democracy  and  Liberty, 
i,  540-557;  Jennings,  Eighty  Years  of  Republican  Government,  Chap. 
IX;  H.  von  Hoist,  Constitutional  Lair,  §§  94-98;  Wright,  Practical 
Sociology,  §§  38,  39. 

The  Emancipation  of  the  Slaves. — Nicolay  and  Hay,  Lin- 
coln, vi,  Chap.  VIII,  XIX;  Burgess,  Civil  War,  ii,  97-101;  Morse, 
Lincoln,  ii,  116-121;  Rhodes,  History  of  the  United  States,  iii, 
157-163. 

The  Right  to  Vote.— Lalor,  Cyclopcedia,  iii,  822-833;  See 
bibliography  on  page  833. 

Magna  Charta. — Consult  the  text  of  the  charter  and  the  dis- 
cussion in  Stubbs's  Constitutional  History  of  England. 

Slaves  as  "Contraband  of  War." — Nicolay  and  Hay, 
Lincoln,  iv,  387-396;  Rhodes,  History  of  the  United  States,  iii,  466- 
468.  • 

Changes  in  the  Federal  Constitution. — Cooley  and  others, 

Constitutional  History  as  Seen  in  Constitutional  Law;  Burgess, 
Reconstruction  and  the  Constitution,  73-79;  Bryce,  American  Com- 
monwealth, abridged  edition,  271-284. 

Equality. — Harris,  Progress  and  Inequality;  Moses,  Democracy 
and  Social  Growth,  1-35. 


CHAPTER  IX 
THE    CONTINENTAL    TERRITORIES 

142.  The  Government  of  the  Northwestern  Territory. — 
At  the  close  of  the  War  of  Independence  the  General  Govern- 
ment did  not  possess,  or  exert  direct  control  over,  any 
territory  whatsoever.  All  lands  embraced  within  the  bound- 
ary fixed  by  the  treaty  of  1783  were  covered  by  the  claims 
of  the  States.  The  territorial  claims  of  several  of  these 
States — New  Hampshire,  Rhode  Island,  New  Jersey,  Del- 
aware, and  Maryland — did  not  reach  beyond  the  region 
now  occupied  by  New  England  and  the  middle  and  southern 
Atlantic  States.  The  rest  of  the  territory  between  Florida 
and  the  Lakes  was  claimed  by  the  other  States.  An  im- 
portant step  in  the  development  of  the  dignity  and  inde- 
pendence of  Congress  was  the  cession  of  the  territory 
bounded  by  the  Great  Lakes  and  the  Mississippi  and  Ohio 
rivers  to  the  General  Government.  Such  a  cession  had  been 
contemplated  before  the  end  of  the  war,  as  may  be  seen  by 
the  following  resolution,  submitted  to  Congress  in  October, 
1777: 

"That  the  United  States  in  Congress  assembled  shall 
have  the  sole  and  exclusive  right  and  power  to  ascertain 
and  fix  the  western  boundary  of  such  States  as  claim  to  the 
Mississippi  or  tlie  South  Sea,  and  lay  out  the  land  beyond 
the  boundary  so  ascertained  into  separate  and  independent 
States,  from  time  to  time,  as  the  numbers  and  circumstances 
of  the  people  thoroof  mav  require." 

17  "  249 


250      THE   GOVERNMENT  OF  THE  UNITED  STATES 

Maryland  alone  voted  for  this  resolution.  Other  resolu- 
tions of  a  somewhat  similar  import  were  considered  in 
connection  with  the  adoption  of  the  Articles  of  Confedera- 
tion; but  they  were  not  carried,  and  the  failure  to  make 
any  satisfactory  provision  respecting  the  northwestern  lands 
caused  Maryland  to  withhold  her  assent  to  the  Articles  of 
Confederation  until  1781.  The  beginning  of  a  solution 
of  the  problem  of  a  central  Government  appeared,  when, 
in  1780,  the  legislature  of  New  York  provided:  (1)  That 
the  delegates  of  that  State  in  Congress  should  restrict  the 
boundaries  of  the  States  in  the  western  parts,  as  they  might 
think  to  be  expedient,  with  respect  either  to  the  jurisdiction 
or  the  right  of  the  soil,  or  both;  (2)  that  the  territory  so 
ceded  should  inure  to  the  benefit  of  the  States  in  the  Union; 
(3)  that  if  any  lands  so  ceded  should  remain  within  the  juris- 
diction of  the  State,  they  should  be  surveyed  and  disposed 
of  only  as  Congress  might  direct. 

This  was  the  first  important  step  taken  toward  the  ces- 
sion of  territory  to  the  Federal  Government.  It  set  an 
example  for  the  other  States  to  follow.  The  policy  of  the 
Federal  Government  with  respect  to  the  lands  that  had  been 
or  might  be  ceded  to  it  was  indicated  in  a  resolution  adopted 
by  Congress,  October  10,  1780,  in  which  it  was  announced 
that  these  lands  would  "be  disposed  of  for  the  common 
benefit  of  the  United  States,  and  be  settled  and  formed  into 
distinct  republican  States,  and  that  these  States  would 
become  members  of  the  Federal  Union,  and  have  the  same 
rights  of  sovereignty,  freedom,  and  independence  as  the 
other  States." 

Connecticut  was  the  last  of  the  States  to  cede  its  western 
lands.  Its  "deed  of  release  and  cession"  was  authorized, 
May  1 1 ,  1786.  This  action  completed  the  title  of  the  Federal 
Government  to  the  lands  that  came  to  be  known  as  the 
Northwestern  Territory;  but  it  left  the  tract  known  as 
the  Western  Reserve  in  the  hands  of  Connecticut.     In  the 


THE  COxNTINENTAL  TERRITORIES  251 

course  of  the  negotiations  respecting  these  cessions,  four 
different  suggestions  for  the  disposition  of  the  northwestern 
lands  were  made: 

1.  That  the  claimant  States  should  retain  them  for  their 
own  exclusive  use. 

2.  That  the  lands  or  their  proceeds  should  be  distributed, 
in  whole  or  in  part,  among  the  States,  leaving  the  juris- 
diction in  the  hands  of  the  claimant  States. 

3.  That  Congress  should  assert  the  sovereign  power  of 
the  United  States  over  them,  without  waiting  for  cessions. 

4.  That  they  should  be  ceded  by  the  claimant  States  to 
the  United  States. 

The  cessions  having  been  made,  in  accordance  with  the 
fourth  suggestion,  Congress  undertook  to  give  this  region  a 
political  organization.  This  was  done  by  the  passage  of  the 
Ordinance  of  1787,  which  was  entitled  "An  ordinance  for 
the  government  of  the  territory  of  the  United  States  north- 
west of  the  river  Ohio."  ^  This  ordinance  "was  a  constitu- 
tion for  the  territory  northwest  of  the  river  Ohio,"  and  it 
was  at  the  same  time  "a  model  for  later  legislation  relating 
to  the  national  Territories."  The  territory  was  recognized 
as  one  district  for  the  purpose  of  temporary  government; 
but  Congress  could  divide  it  into  two  districts  later,  if  this 
appeared  to  be  expedient.  The  second  section  of  the  ordi- 
nance established  rights  of  inheritance  for  the  inhabitants 
of  the  district.  It  provided  that  landed  estates  belonging 
to  persons  dying  intestate  should  ])c  divided  among  the 
children  of  the  intestate;  or,  if  none,  among  the  next  of  kin, 
in  equal  shares. 

The  Government  created  by  this  ordinance  consisted 
of  a  governor,  a  secretary,  three  judges,  a  legislative  council, 
and  a  house  of  representatives.  These  last  two  houses  and 
the  governor  constituted  the  general  assembly. 

'  See  Appendix,  page  371. 


252      THE   GOVERNMENT  OF  THE   UNITED   STATES 

The  governor  was  appointed  by  Congress  for  a  term  of 
three  years.  It  should  be  remembered  in  this  connection 
that  the  government  of  the  Northwestern  Territory  was 
organized  before  the  adoption  of  the  Constitution.  The 
Congress  was,  therefore,  the  sole  authority  of  the  Union. 
Hence,  as  there  was  no  President,  Congress  made  appoint- 
ments, thus  exercising  both  legislative  and  executive  power. 
The  governor  of  the  Territory  was  required  to  have  a  free- 
hold estate  in  the  district  of  at  least  1,000  acres  of  land. 
He  was  the  commander  in  chief  of  the  militia,  and  was 
empowered  to  appoint  all  officers  "  below  the  rank  of  gen- 
eral officer."  He  might  also  appoint,  before  the  organ- 
ization of  the  general  assembly,  such  magistrates  and 
other  civil  officers,  in  each  county  or  township,  as  he  should 
find  necessary  for  the  preservation  of  peace  and  good  order 
in  the  same. 

The  secretary  and  the  judges  were  appointed  by  Con- 
gress; the  secretary  for  a  term  of  four  years,  the  judges  for 
an  indefinite  term,  as  long  as  they  might  be  able  to  render 
satisfactory  service.  Each  of  these  officers  was  required  to 
live  in  the  Territory,  and  to  have  a  freehold  of  500  acres 
of  land.  Two  of  the  judges  might  form  a  court  having 
common-law  jurisdiction.  The  governor  and  the  judges,  or 
a  majority  of  them,  might  adopt  and  publish  as  provisional 
laws  of  the  district  such  laws  of  the  original  States,  criminal 
and  civil,  as  might  be  necessary.  These  provisional  laws 
should  remain  in  force  in  the  Territory  until  the  organi- 
zation of  the  general  assembly,  unless  disapproved  of  by 
Congress. 

The  district  legislature  was  to  be  organized  as  soon  as 
there  were  5,000  free  mature  male  inhabitants  in  the  dis- 
trict. The  representatives  were  to  bo  elected  from  the 
"counties  or  townships,"  one  for  each  500  male  inhabi- 
tants; and  each  representative  was  required  to  have  been  a 
citizen  of  the  United  States  three  years,  or  to  have  resided 


THE  CONTINENTAL  TERRITORIES  253 

in  the  district  three  years,  and  to  have  200  acres  of  land  in 
the  district.  The  elector  was  required  to  have  50  acres  of 
land,  and  to  have  been  a  citizen  of  one  of  the  States,  or  a 
resident  in  the  district  for  two  3'ears.  The  representatives 
were  elected  for  a  term  of  two  years. 

The  governor  and  the  house  of  representatives  were  two 
of  the  elements  of  the  general  assembly.  The  third  element 
was  a  legislative  council.  This  body  consisted  of  five  mem- 
bers, holding  office  for  five  years,  unless  sooner  removed  by 
Congress.  The  members  of  the  legislative  council  were 
appointed  by  Congress  from  a  list  of  ten  persons  nominated 
by  the  house  of  representatives  of  the  district.  In  case  of  a 
vacancy,  Congress  appointed  one  of  two  persons  nominated 
by  the  same  house  of  representatives.  Each  member  of  the 
council  was  required  to  possess  a  freehold  of  500  acres  of 
land  in  the  district.  The  general  assembly  thus  constituted 
made  laws  for  the  district;  and  no  bill  or  legislative  act 
could  be  of  any  force  without  the  governor's  assent.  The 
governor  of  the  Northwestern  Territory  thus  held  the  power 
of  an  absolute  veto,  and  it  is  noteworthy  that  this  power  was 
not  conferred  upon  either  the  President  or  any  governor  of 
a  State. 

The  Ordinance  of  1787  ends  with  six  articles  that  may 
be  called  a  bill  of  rights  or  constitutional  guarantees.  These 
articles  declare  and  confirm  to  the  inha])itants  freedom  of 
worship,  the  benefits  of  writs  of  habeas  corpus,  trial  by 
jury,  judicial  proceedings  according  to  the  common  law, 
and  moderate  fines.  They  forbid  cruel  or  unusual  punish- 
ments, and  the  taking  of  one's  liberty  or  property,  but  by 
the  judgment  of  his  peers,  and  in  pursuance  of  the  law  of  the 
land.  They  provide  that  schools  shall  forever  be  encouraged ; 
that  faith  shall  be  observed  toward  the  Indians;  and  that 
the  property  of  the  Indians  shall  not  be  taken  without  their 
consent.  They  affirm  that  the  inhabitants  shall  be  subject 
to   the   Articles   of  Confederation   and   the   ordinances    of 


254      THE   GOVERNMENT   OF  THE  UNITED   STATES 

Congress;  that  the  territory  of  the  district  may  be  divided 
into  not  less  than  three  nor  more  than  five  States.  The 
sixth  article  prohibits  slavery,  but  provides  that  fugitive 
slaves  may  be  returned  to  their  masters  in  other  States. 

The  Old  Northwest  has  been  divided;  and  the  States  of 
Ohio,  Indiana,  Illinois,  Michigan,  Wisconsin,  and  Minne- 
sota have  been  formed  out  of  its  territory.  The  Ordinance 
of  1787  has  ceased  to  be  in  force;  but  this  noteworthy 
organization  of  a  colonial  dependency  continues  to  be  of 
great  historical  importance.  It  has  furnished  a  model  for 
later  territorial  governments  in  lands  that  have  been  ac- 
quired since  the  treaty  of  1783.  The  successful  manage- 
ment of  the  Territories  that  earlier  or  later  have  occupied  a 
large  part  of  the  area  of  the  United  States  has  been  due  to 
the  existence  of  this  excellent  model  and  the  good  sense  of 
legislators  in  following  it. 

Topics. — Western  lands  owTied  by  States. — First  cession  to 
General  Government. — Early  resolution  in  Congress.— Maryland's 
attitude. — Resolution  by  New  York,  1780. — Congressional  resolu- 
tion, 1780. — Action  by  Connecticut. — The  Western  Reserve. — Four 
proposals  respecting  northwestern  lands. — Ordinance  of  1787. — 
Governmental  organization  provided. — The  bill  of  rights  in  the 
ordinance. — States  formed  from  the  Northwestern  Territory. 

References.— Hinsdale,  The  Old  Northwest,  243,  268;  Poore, 
Charters  and  Constitutions,  i,  431;  Hart,  Actual  Government,  23, 
364,  365;  Fiske,  Civil  Government,  90,  263;  McLaughlin,  History  of 
the  American  Nation,  223. 

143.  The  Status  of  Territories. — While  Congress  was  ne- 
gotiating with  the  several  States  for  a  cession  of  the  west- 
ern lands  claimed  by  these  States,  Maryland  stipulated  that 
the  western  territory' "  should  be  considered  as  a  common 
property  to  be  parceled  out  by  Congress  into  free,  con- 
venient, and  independent  governments,  in  such  manner  and 
at  such  times  as  the  wisdom  of  that  assembly  shall  hereafter 


THE  CONTINENTAL  TERRITORIES  255 

direct."  This  sti])ukition  was  made  in  December  1778. 
In  October,  1780,  Congress  adopted  a  resolution  providing 
that  the  ceded  territory  should  be  "  formed  into  distinct 
republican  States  which  should  become  members  of  the 
Federal  Union  and  have  the  same  rights  of  sovereignty, 
freedom,  and  independence  as  the  other  States."  This 
resolution  indicated  a  policy  favoring  the  ultimate  extension 
of  the  system  of  States  to  the  unsurveyed  regions  of  the 
West.  It  forecast  the  extension  of  the  Federal  Govern- 
ment. New  States  were  to  be  formed  within  the  limits  of 
the  ceded  lands,  but  the  new  political  societies  had  to  pass 
through  a  probationary  period  of  territorial  organization  and 
dependence  before  they  could  become  States.  The  first 
stage  of  the  history  of  this  organization  was  that  indicated 
in  the  Ordinance  of  1787,  described  in  the  preceding  section. 
Since  the  adoption  of  the  Constitution,  and  thus  under  the 
present  Federal  Government,  the  organic  law  of  a  Territory 
is  the  United  States  statute  which  establishes  the  Territory 
and  provides  for  its  government.  Each  statute  of  this  kind 
passed  on  organizing  a  new  Territory  has  provided  that 
"  there  shall  be  established  within  the  said  Territory  a  gov- 
ernment in  all  respects  similar  to  that  provided  by  the 
ordinance  of  Congress  passed  on  the  thirteenth  day  of  Jul)'', 
1787,  for  the  government  of  the  territory  of  the  United  States 
northwest  of  the  river  Ohio,  and  the  inhabitants  thereof 
shall  be  entitled  to  and  enjoy,  all  and  singular,  the  rights, 
privileges,  and  advantages  granted  and  secured  to  the  people 
by  the  said  ordinance."  Such  a  statute  holds  essentially 
the  same  relation  to  the  government  of  the  Territory  that  a 
State  constitution  holds  to  the  government  of  the  State. 
Moreover,  the  political  position  of  a  Territory  is  essentially 
the  same  as  that  of  a  British  colony;  for  the  organic  law 
of  the  colony  is  an  act  of  Parliament.  The  organic  law  of 
Canada  is  a  British  statute.  The  several  Territories  that 
have  existed  under  the  United  States  Government  have 


256      THE   GOVERNMENT   OF  THE  UNITED  STATES 

existed  practically  as  colonial  dependencies,  to  which  Con- 
gress has  granted  certain  powers  of  self-government. 

The  members  of  the  new  communities  formed  in  the 
territory  ceded  by  the  'original  States  were  not  known  as 
colonists,  and  thus  they  escaped  whatever  unpleasant  sug- 
gestions might  have  come  from  such  a  designation.  They 
were  not  led  to  think  of  themselves  as  dependents.  The 
political  societies  to  which  they  belonged  were  given  the 
colorless  designation  of  Territories.  The  colonial  policy 
here  carried  out  by  the  United  States  differed  from  the 
contemporary  colonial  policies  of  other  governments  in  two 
particulars:  it  allowed  the  inhabitants  a  larger  measure  of 
political  liberty,  and  it  held  out  to  the  Territory  the  prospect 
of  becoming  a  State.  The  idea  that  the  status  of  a  Territory 
is  transitory,  that  it  is  the  first  step  toward  statehood,  has 
hitherto  been  regarded  as  the  characteristic  feature  of  the 
colonial  system  of  the  United  States.  It  was  easy  to  carry 
out  practically  this  idea  as  long  as  the  population  of  the 
Territories  was  made  up  of  emigrants  from  the  States,  and 
as  long  as  the  lands  they  occupied  were  contiguous  to  the 
lands  of  the  States;  for  through  this  process  the  Territories 
came  to  be  occupied  by  inhabitants  not  differing  in  any 
essential  particular  from  the  inhabitants  of  the  rest  of  the 
Union.  They  acquired  in  many  cases,  doubtless,  manners 
and  customs  peculiar  to  the  frontier,  but  the  circumstances 
of  their  life  tended  to  strengthen  rather  than  to  weaken 
their  sentiments  of  liberty  and  their  democratic  spirit  of 
equality. 

But  when  colonial  territory  far  removed  from  the  Amer- 
ican continental  possessions  of  the  nation  is  largely  popu- 
lated by  members  of  an  alien  race,  whose  antecedents  and 
ideas,  traditions  and  customs,  differ  widely  from  those  of 
the  bulk  of  the  nation,  the  colonial  question  for  the  United 
States  assumes  a  new  aspect.  It  is  no  longer  possible  to 
emphasize  as  heretofore  the  idea  that  the  Territory  will 


THE  CONTINENTAL  TERRITORIES  257 

ultimately  grow  into  a  State.  The  colonial  policy  carried 
out  with  respect  to  Michigan  when  it  was  a  Territory  occupied 
by  inhabitants  who  had  emigrated  from  the  older  States 
was  a  policy  somewhat  different  from  that  suggested  by  the 
circumstances  of  the  Philippine  Islands.  The  inhabitants 
of  the  islands  have  no  race  affiliation  with  the  bulk  of  the 
inhabitants  of  America,  and  they  are  without  that  political 
education  and  experience  which  have  finally  made  popular 
government  possible  in  England  and  the  United  States. 

Topics. — Congressional  resolution  as  to  new  States. — Organic 
law  of  Territory. — Political  position  of  a  Tcrritor3\ — Territory 
compared  with  British  colony;  with  insular  dependency. 

References.— Hart,  Actual  Goveriwient,  31,  32,  304-373; 
Bryce,  American  Commonwealth,  122,  346,  552-559;  Miller,  Lec- 
tures, 638. 

144.  The  Organization  of  Territories. — When  the  first 
Territories  were  organized,  they  had  few  inhabitants;  and 
these  lived  in  small,  isolated  settlements  or  were  scattered 
throughout  the  wilderness.  The  kind  of  government  that 
existed  in  the  several  States  was  not  suited  to  the  conditions 
of  the  new  country,  and  by  the  Ordinance  of  17S7  a  new 
form  was  created.  Tliis  became  the  model  for  the  later 
territorial  governments. ^  Its  fundamental  feature  was 
dependence  on  the  Federal  Government.  'J'hc  governor, 
the  secretary,  and  the  judges  were  at  first  appointed  by 
Congress;  but  later,  under  the  Constitution,  after  the  estab- 
lishment of  the  presidency,  they  were  api)()intcd  by  the 
President.  The  governor  and  the  judges  might  adopt  from 
State  statutes  provisional  laws  during  the  period  before  the 
mature  male  population  had  increased  so  as  to  number 
5,000.  After  this  there  was  to  be  created  a  territorial 
legislature,  composed  of  a  legislative  council  and  a  house  of 

*  See  page  251. 


258      THE   GOVERNMENT  OF  THE   UNITED   STATES 

representatives.  The  legislature  in  this  form  possessed  ex- 
tensive legislative  authority  covering  "  all  rightful  subjects 
of  legislation,"  including  the  granting  of  charters  of  incorpo- 
ration, endowing  institutions  of  learning,  and  providing  for 
the  exercise  of  the  right  of  eminent  domain. ^  The  power 
of  absolute  veto  was  held  by  the  governor  under  the  Articles 
of  Confederation,  but  under  the  Constitution  the  absolute 
veto  was  not  given  either  to  the  President  or  to  any  terri- 
torial or  State  governor.  Under  this  organization  the 
territorial  legislature  might  appoint  a  delegate  who  should 
have  the  right  to  speak  in  Congress  but  not  the  right  to  vote. 
In  some  of  the  Territories,  however,  the  delegate  was  chosen 
by  the  people.  The  details  of  organization  varied  in  some 
instances  widely  from  the  original  model. 

The  first  act  providing  a  government  for  Louisiana  simply 
empowered  the  President  to  appoint  all  civil,  militar}^  and 
judicial  officers  of  the  new  Territory,  to  define  their  duties, 
and  to  support  them  with  the  army  and  navy  of  the  United 
States.  Under  the  later  organization  of  this  Territory  there 
was  a  governor  appointed  by  the  President  for  three  years, 
and  a  secretary  appointed  for  four  years.  There  was  also  a 
legislature  composed  of  the  governor  and  a  legislative  coun- 
cil of  thirteen  members.  The  judicial  power  was  exercised 
through  a  system  of  courts  in  which  the  judges  were  ap- 
pointed for  four  years,  and  the  people  enjoyed  the  right  of 
trial  by  jury  and  the  privilege  of  bail.  The  legislature  of 
the  Territory  of  Missouri,  formed  in  1812,  consisted  of  a 
governor,  a  legislative  council,  and  a  house  of  representa- 
tives. The  members  of  the  house  of  representatives  were 
elected  by  the  people.  The  legislative  council  was  com- 
posed of  nine  members  appointed  by  the  President  from  a 
list  of  eighteen  nominated  by  the  house  of  representatives 
of  the  Territory. 


I  See  §  130. 


THE  CONTINENTAL  TERRITORIES  259 

In  the  later  Territories  the  legislative  council  is  com- 
posed generally  of  twelve  persons,  and  the  house  of  repre- 
sentatives of  twenty-four,  each  elected  for  two  years  by 
voters,  whose  right  to  vote  is  determined  by  the  territorial 
statutes.  There  is  also  a  supreme  court  of  the  Territory, 
consisting  of  three  or  more  judges  appointed  by  the  Presi- 
dent. This  court  administers  such  Federal  laws  as  are 
properly  applicable  to  the  Territory,  and  also  the  statutes 
created  by  the  territorial  legislature.  The  inhabitants 
enjoy  the  same  civil  rights  as  other  American  citizens,  but 
their  political  rights  are  limited.  They  have  no  part  in  the 
national  Government,  for  their  representatives  in  Wash- 
ington have  no  vote.  The  people  of  the  Territories  may 
not  vote  at  any  presidential  election.  Their  governors  and 
judges  are  appointed  by  the  President,  and  Congress  may 
set  aside  any  statute  passed  by  their  legislature.  Congress, 
moreover,  fixes  the  time  and  manner  of  their  transforma- 
tion into  a  State. 

Topics. ^ — Source  and  extent  of  power  of  territorial  government. 
— Delegates  to  Congress. — First  law  providing  for  government  of 
Louisiana. — Later  government  of  Louisiana. — Territory  of  Missouri. 
— Government  of  later  Territories. — Rights  of  the  people. 

References.- — Bryce,  American  Commonwealth,  i,  553;  Lalor, 
Cyclopaedia,  ill,  914-920;  Cooley,  Constitutional  Law,  36,  37,  52,  53, 
130,  164-168. 

145.  Power  of  Congress  over  Territories. — Ever  since  the 
States  ceded  to  the  General  Government  whatever  rights 
they  had  to  western  lands,  Congress  has  exercised  the  power 
to  govern  these  lands  under  territorial  organizations.  It 
may  be  still  a  question  whether  this  power  is  based  on  a 
mere  proprietary  right,  like  the  right  which  a  community 
may  have  in  lands,  or  on  the  right  of  political  dominion 
which  a  sovereign  necessarily  exercises  over  all  territory  and 
inhabitants  that  lie   within  the  limits  of  its  jurisdiction. 


260      THE   GOVERNMENT   OF  THE  UNITED   STATES 

Whatever  may  be  the  result  of  inquiry  into  this  question, 
Congress  has  from  the  beginning  exercised  supreme  control 
over  all  lands  that  have  been  added  to  the  Union  and  not 
to  any  State.  Not  only  has  the  Government  of  the  United 
States  acted  on  the  supposition  that  it  might  acquire  terri- 
tory, but  its  power  and  right  in  this  matter  have  been 
affirmed  by  the  Supreme  Court.  "  The  Constitution  con- 
fers absolutely  on  the  Government  of  the  Union  the  powers 
of  making  war  and  of  making  treaties;  consequently  that 
Government  possesses  the  power  of  acquiring  territory 
either  by  conquest  or  by  treaty."  The  territory  having 
been  acquired,  the  duty  of  controlling  it  devolves  upon 
Congress;  for,  according  to  the  Constitution,  "  the  Congress 
shall  have  power  to  dispose  of,  and  make  all  needful  rules 
and  regulations  respecting,  the  territory  or  other  property 
belonging  to  the  United  States."  Congress,  then,  possesses 
the  power  to  legislate  for  the  Territories;  and  this  power  is 
exclusive.  "It  may  be  exercised  directly,  or  delegated  to 
local  governments  set  up  by  Congress  and  retained  under 
its  supervision."  This  position  has  been  recognized  in  the 
practice  of  the  General  Government,  and  it  is  upheld  by 
the  decisions  of  the  Supreme  Court.  If  Congress  possesses 
the  unquestioned  power  to  govern  such  Territories,  it  would 
seem  to  be  idle  to  affirm  that  they  must  be  transformed 
into  States.  The  determination  of  the  time  when  a  Terri- 
tory shall  be  converted  into  a  State  is  with  Congress,  and 
Congress  cannot  be  compelled  to  act.  There  is,  moreover, 
no  other  way  besides  that  controlled  by  Congress  by  which 
a  Territory  may  become  a  State.  The  language  of  the  Con- 
stitution in  this  matter  is  permissive :  "  New  States  may  be 
admitted  by  Congress  into  this  Union."  If  Congress  in  its 
wisdom  finds  that  it  is  not  advisable  to  transform  a  Terri- 
tory into  a  State  after  fifty  years,  there  appears  to  be  no 
constitutional  power  to  override  its  decision,  if  it  adheres 
to  this  view  after  four  hundred  years. 


THE  COXTINEXTAL  TERRITORIES  2G1 

Topics. — Control  of  Federal  territory  in  the  past. — Congres- 
sional power  exclusive. — As  to  transformation  of  Territories  into 
States. 

References. — Miller,  Lectures,  638;  Hart,  Actual  Government, 
372;  Cooley,  Constitutional  Law,  164-168. 

146.  Changing  a  Territory  into  a  State. — It  is  expected 
that  a  continental  Territory  will  be  changed  into  a  State  as 
soon  as  the  number  of  inhabitants  and  other  conditions 
warrant  conferring  upon  it  the  powers  and  liberties  that 
belong  to  a  State  in  the  Union;  but  Congress  has  complete 
discretion  in  this  matter  and  may  decide  to  admit  or  not  to 
admit  a  Territory,  as  it  may  appear  politically  advantageous 
to  the  party  dominant  in  Congress  for  the  time  being.  It 
may  happen  that  a  Territory  may  have  a  sufficient  number 
of  inhabitants  to  make  its  admission  desirable,  but  still  not 
be  admitted  because  of  their  ignorance  or  lawlessness  or 
unpromising  traditions.  New  Mexico  remained  a  Territory 
until  its  population  numbered  over  200,000.  Arizona  had 
a  population  of  more  than  125,000  before  it  became  a  State. 
A  large  part  of  the  inhabitants  in  these  cases  were  of  a  mix- 
ture of  Spanish  and  Indian  blood,  and  not  well  suited  by 
character  or  tradition  to  establish  and  develop  republican 
institutions.  Usually,  in  turning  a  Territory  into  a  State, 
Congress  passes  an  enabling  act.  Under  this  act  the  voters 
elect  the  members  of  a  constitutional  convention  which 
proceeds  to  make  a  draft  of  a  constitution.  This  draft 
having  been  adopted  by  the  voters  of  the  Territory  and 
having  thus  become  the  constitution,  the  Territory  is  ad- 
mitted to  the  Union  as  a  State  either  by  a  proclamation 
of  the  President  or  by  an  act  of  Congress.  Nevada,  having 
formed  and  adopted  a  constitution,  was  admitted  as  a  State 
by  a  proclamation  of  the  President.    ' 

There  is  another  method  of  turning  a  Territory  into  a 
State.     In  this  case,  the   people,  witliout   a  congressional 


2G2      THE   GOVERNMENT   OF  THE   UNITED   STATES 

enabling  act,  form  a  constitution  and  elect  the  officers 
provided  for  by  it.  They  then  present  the  constitution  to 
Congress  and  apply  for  admission  as  a  State  under  this  con- 
stitution. It  may  happen,  moreover,  that  when  a  constitu- 
tion has  been  formed,  either  with  or  without  an  enabling  act, 
and  presented  to  Congress,  that  body  may  require  of  the 
Territory  certain  concessions  before  admission.  Congress 
may  require  that  a  portion  of  territory  shall  be  yielded,  or 
that  the  proposed  rule  of  suffrage  shall  be  changed,  indicat- 
ing that  admission  is  a  matter  entirely  under  the  control 
of  Congress. 

Topics. — -Power  to  convert  a  Territory  into  a  State. — Con- 
sideration delaying  admission  of  a  State. — Processes  of  changing 
a  Territory  into  a  State. 

References. — Bryce,  American  Commonwealth,  \,  556;  Cooley, 
Constitutional  Law,  1G9-177. 


147.  Texas  and  California. — Texas  and  California  be- 
came States  without  passing  through  the  preliminary  Terri- 
torial stage.  Texas  was  at  first  a  part  of  Mexico.  Under 
the  Mexican  federal  constitution  of  1824,  it  was  embraced 
in  the  "state  of  Coahuila  and  Texas."  Soon  after  the  or- 
ganization of  this  State  its  population  was  increased  by 
immigration  from  the  United  States.  In  1835  Santa  Anna 
abolished  the  Mexican  federal  government  and  reduced  the 
States  to  mere  departments  under  a  centralized  adminis- 
tration. The  inhabitants  of  Texas  rebelled,  organized  a 
provisional  government,  framed  a  constitution,  and  proposed 
to  defend  themselves  as  an  independent  state.  The  in- 
dependence of  the  Republic  of  Texas  was  acknowledged 
by  the  United  States,  England,  France,  and  Belgium.  A 
treaty  of  annexation  between  Texas  and  the  United  States 
was  formed  in  1844,  but  it  was  rejected  by  the  Senate  by  a 
vote  of  16  to  35.     By  a  joint  resolution  passed  by  the  House 


THE  CONTIXENTAL  TERRITORIES  2G3 

and  by  the  Senate  in  December,  1845,  Texas  was  admitted 
as  a  State. 

Texas,  like  the  Hawaiian  Islands  later,  was  annexed  to 
the  United  States  by  a  joint  resolution  of  Congress.  Texas 
had  already  adopted  a  constitution  and  thus  became  a 
State  immediately  on  its  annexation. ^ 

»  JOINT  RESOLUTION  FOR  THE  ADMISSION  OF  THE  STATE 
OF  TEXAS  INTO  THE  UNION. 

Whereas,  The  Congress  of  the  United  States,  by  a  joint  resolution 
approved  March  the  first,  eighteen  hundred  and  forty-five,  did  consent 
that  the  Territory  properly  included  within,  and  rightfully  belonging  to, 
the  Republic  of  Texas,  might  be  erected  into  a  new  State,  to  be  called 
the  State  of  Texas,  with  a  republican  form  of  government,  to  be  adopted 
by  the  people  of  said  republic,  by  deputies  in  convention  assembled, 
with  the  consent  of  the  existing  government,  in  order  that  the  same 
might  be  admitted  as  one  of  the  States  of  the  Union ;  which  consent  of 
Congress  was  given  upon  certain  conditions  specified  in  the  first  and 
second  sections  of  said  joint  resolution;  and  whereas  the  people  of  the 
said  Republic  of  Texas,  by  deputies  in  convention  assembled,  with  the 
consent  of  the  existent  government,  did  adopt  a  constitution,  and  erect  a 
new  State  with  a  republican  form  of  government,  and,  in  the  name  of  the 
people  of  Texas,  and  by  their  authority,  did  ordain  and  declare  that  they 
assented  to  and  accepted  the  proposals,  conditions,  and  guarantees  con- 
tained in  said  first  and  second  sections  of  said  resolution:  and  whereas 
the  said  constitution,  with  the  proper  evidence  of  its  adoption  by  the 
people  of  the  Republic  of  Texas,  has  been  transmitted  to  the  President 
of  the  United  States  and  laid  before  Congress,  in  conformity  to  the  pro- 
visions of  said  joint  resolution:  Therefore — 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  State  of  Texas  shall 
be  one,  and  is  hereljy  declared  to  be  one,  of  the  Ignited  States  of  America, 
and  admitted  into  the  Union  on  an  equal  footing  with  the  original  States 
in  all  respects  whatever. 

Sec.  2.  And  be  it  further  resolved,  That  until  the  representatives 
in  Congress  shall  be  apportioned  according  to  an  actual  enumeration 
of  the  inhabitants  of  the  United  States,  the  State  of  Texas  shall  be 
entitled  to  choose  two  representatives. 

Approved,  December  29,  IS  15. 


2G4      THE   GOVERNMENT  OF  THE   UNITED   STATES 

The  consequence  of  annexing  Texas  was  war  with  Mex- 
ico. This  war  and  tlie  treaty  which  followed  it  brought 
to  the  United  States  the  vast  regions  at  present  embraced 
in  Utah,  Nevada,  Colorado,  New  Mexico,  California,  and  a 
large  part  of  Arizona.  The  rapid  increase  of  the  population 
of  California,  due  to  the  discovery  of  gold,  made  necessary 
the  establishment  of  an  effective  government  for  that 
region.  Therefore,  in  the  autumn  of  1849,  a  State  con- 
stitution was  formed  and  adopted,  and  under  it  a  gov- 
ernor and  other  officers  were  elected.  These  officers  entered 
upon  the  performance  of  their  duties  without  congressional 
authority  and  conducted  the  affairs  of  government  until 
September,  1850,  when  California  was  admitted  to  the  Union 
as  a  State. 1 

During  this  period,  between  the  formation  of  the  con- 
stitution and  the  admission  of  California  as  a  State,  this 
region  belonged  by  treaty  to  the  United  States;  but  there 
had  been  no  legislation  organizing  here  a  Territorial  gov- 

1  ACT  FOR  THE  ADMISSION  OF  THE  STATE  OF  CALIFORNIA 

INTO  THE  UNION. 

"Whereas,  The  people  of  California  having  presented  a  constitution 
and  asked  admission  into  the  Union,  which  constitution  was  submitted 
to  Congress  by  the  President  of  the  United  States,  by  message  dated 
February  thirteenth,  eighteen  hundred  and  fifty,  and  which,  on  due 
examination,  is  found  to  be  republican  in  its  form  of  government: 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  State  of  California  shall 
be  one,  and  is  hereby  declared  to  be  one,  of  the  United  States  of  America, 
and  admitted  into  the  Union  on  an  equal  footing  with  the  original  States 
in  all  respects  whatever. 

2.  The  said  State  of  California  is  admitted  into  the  Union  upon  the 
express  condition  that  the  people  of  said  State,  through  their  legislature 
or  otherwise,  shall  never  interfere  with  the  primary  disposal  of  the  public 
lands  within  its  limits,  and  shall  pass  no  law  and  do  no  act  whereby  the 
title  of  the  United  States  to,  and  right  to  dispose  of,  the  same  shall  be 
impaired  or  questioned ;  and  that  they  shall  ne^'cr  lay  anj^  tax,  or  assess- 


THE    COXTINEXTAL  TERRITORIES  265 

ernment  or  authorizing  the  creation  of  a  State  government. 
A  government,  however,  existed  in  fact,  created  and  sup- 
ported by  the  people,  but  had  no  representation  whatsoever 
in  Congress  and  had  not  received  any  congressional  au- 
thority. 

The  proposition  to  admit  Texas  provoked  an  especially 
savage  clash  of  the  parties.  Under  ordinary  circumstances, 
if  there  is  a  Territory,  the  population  of  which  is  likely  to 
continue  to  present  a  majority  for  one  party  in  its  elections, 
that  party  will  naturally  favor  its  admission  as  a  State. 
It  will  thereby  gain  two  more  senators,  who  may  perhaps 
be  counted  on  even  in  doubtful  years.  It  will  receive 
additions  also  to  its  forces  in  the  House.  The  opposite 
party  will  quite  naturally  wish  to  delay  the  admission  of 
such  a  State.  While  slavery  existed  in  the  South,  the  an- 
tagonism between  the  parties  at  that  time  was  intensified 
by  the  strong  desire  of  the  inhabitants  of  the  Southern  States 
to  extend  their  opportunities  for  employing  the  labor  of 
slaves,  and  by  the  eagerness  of  the  Northern  people  to  pre- 
vent the  extension  of  slavery.  The  question  of  the  ad- 
mission of  Texas  was  a  concrete  case  that  showed  how 
serious  the  antagonism  of  parties  might  become  over  the 

mpnt  of  any  description  whatsoever,  upon  the  public  domain  of  the 
United  States;  and  in  no  case  shall  non-resident  proprietors,  who  are 
citizens  of  the  United  States,  be  taxed  higher  than  residents;  and  that 
all  the  navigable  waters  within  the  said  State  shall  be  common  high- 
ways, and  forever  free,  as  well  to  the  inhabitants  of  said  State  as  to  the 
citizens  of  the  United  States,  without  any  tax,  impost,  or  duty  therefor; 
provided,  that  nothing  herein  contained  shall  be  construed  as  recognizing 
or  rejecting  the  propositions  tendered  by  the  people  of  California,  as 
articles  of  compact  in  the  ordinance  adopted  by  the  convention  which 
formed  the  Constitution  of  that  State. 

3.  All  laws  of  the  United  States  which  are  not  locally  inapplicable 
shall  have  the  same  force  and  effect  within  the  said  State  of  California 
as  elsewhere  within  the  United  States. 

Approved  September  9,  1850. 
18 


266      THE   GOVERNMENT   OF  THE   UNITED   STATES 

admission  of  a  State.  But  since  the  abolition  of  slavery, 
which  was  the  principal  bone  of  contention,  the  basis  of 
antagonism  respecting  the  admission  of  States  has  been 
reduced  to  the  legitimate  desire  of  each  of  the  two  parties  to 
hold  a  majority  in  Congress. 

Topics. — States  that  were  never  Territories. — History  of 
Texas. — Joint  resolution  admitting  Texas. — Consequence  of  annex- 
ing Texas. — Government  of  California,  1S49,  '50. — Act  admitting 
California. — Party  contention  over  the  admission  of  States. 

References. — McLaughlin,  History  of  the  American  Nation, 
353-358,  362-381 ;  Lalor,  Cydopwdia,  iii,  921 ;  Hart,  Actual  Govern- 
ment, 117,  344-340;  Fiske,  Civil  Government,  2G3,  264. 


FOR  ADVANCED  STUDY 

The  Original  Territory  of  the  United  States. — Gannett, 

Boundaries  of  the  United  States  and  of  the  Several  States  (second 
edition.  United  States  Geological  Survey,  Bulletins,  No.  171); 
Magazine  of  Western  History,  ii,  403-423;  American  Historical 
Review,  i,  70-87,  251-269;  Twelfth  Census,  Bulletins,  No.  74;  Hart, 
Epoch  Maps  (revised  edition,  1899). 

The  Territorial  Growth  of  the  United  States. — Inter- 
national Monthly,  iv,  794-820;  Hinsdale,  Old  Northwest,  Chap.  X 
Roosevelt,  Winning  of  the  West,  ii.  Chap.  XHI ;  iv.  Chap.  VI ;  Hart 
Contemporaries,  iii,  §§  111-115,  143,  149;  iv,  §§  11,  14,  46,  174,  185 
Adams,  Uiiited  States,  ii,  Chaps.  II-V;  V,  305-315;  VI,  236,  237 
McMaster,  United  States,  iii,  31-34;  370-375,  536-540;  iv,  476-483 
Schouler,  United  States,  iv,  303-307,  449-451,  457-459,  470,  482- 
488. 

Annexations. — Lalor,  Cyclopa;dia,  i,  93-99,  111,  460-478; 
Mowry,  Territorial  Growth  of  the  United  States;  Donaldson,  The 
Public  Domain,  89-145. 

The  Government  of  the  Continental  Territories  under 
Congress. — Bryce,  American  Commonwealth,  i,  Chap.  XLVII; 
Roosevelt,  Winning  of  the  West,  iii,  Chap.  VI;  Cooley,  Constitu- 
tional  Law,  37,  38,   164-168;   Ordronaux,  Constitutional   Legisla- 


THE  CONTINENTAL  TERRITORIES  267 

Hon,  509-519;  Farrand,  Legislation  for  Organized  Territories;  Black, 
Constitutional  Law,  20,  21,  229-235;  Hart,  Contemj)orarics,  iii,  §§ 
46,  114,  135,  136;  iv,  §§  17,  34,  42,  43,  186;  American  History 
Leaflets,  Nos.  2,  17,  22,  32;  Hill,  Liberty  Documents,  Chap.  XVI. 

The  Territorial  Policy  of  the  Federal  Government. — 

Lalor,  Cyclopaedia,  iii,  914-920;  Judson,  in  Review  of  Reviews,  21 
(1900)-  451-456;  Harper's  Monthly,  98  (1899):  319-328;  Atlantic 
Monthly,  82  (1898):  735-742. 

The  Northwestern  Territory. — Hart,  Formation  of  the 
Union,  107-109;  Fiske,  Critical  Period,  187-199,  203-207;  Hinsdale, 
Old  Northwest;  Ordinance  of  1787,  found  in  Appendix. 

The  Government  of  Territories. — Cooley,  Constitutional 
Law,  36,  37;  Bryce,  American  Commonwealth,  Chap.  XLVII;  Atlantic 
Monthly,  82:  735-742;  Forum,  29:  257-262;  North  American  Review, 
172:  1-22;  Outlook,  68:  337-339. 

The  Annexation  of  Texas. — Burgess,  Middle  Period,  295-301 ; 
Schouler,  History  of  the  United  States,  iv,  303-307;  Benton,  Thirty 
Years'  View,  ii.  Chap.  XXIV. 

Treaty  of  Guadalupe  Hidalgo. — Text  in  MacDonald,  365- 
372;  H.  von  Hoist,  United  States,  iii,  344-347;  Wilson,  Division, 
152,  153;  American  Historical  Review,  1905. 

California  before  Admission. — Hittell,  History  of  California, 
vols.  I  and  II;  H.  von  Hoist,  UnUed  States,  iii,  284-308,  322-327, 
348-358,  385-397,  400,  401;  H.  von  Hoist,  Calhoun,  279-285; 
Burgess,  Middle  Period,  332-337,  340-344. 


CHAPTER  X 

THE  INSULAR  DEPENDENCIES 

148.  The  Territory  of  Hawaii. — After  the  overthrow  of 
the  monarchy  of  Hawaii  in  1893,  a  repubhcan  government 
was  organized  for  the  islands.  Under  this  government, 
negotiations  were  carried  on  looking  to  the  annexation  of 
the  islands  to  the  United  States.  A  treaty  of  annexation 
was  formed  and  submitted  to  the  Senate  by  President  Harri- 
son. It  was,  however,  withdrawn  by  President  Cleveland. 
After  the  inauguration  of  President  McKinley  a  new  treaty 
was  formed  and  sent  to  the  Senate  in  June,  1897;  but  that 
body  did  not  vote  on  it.  There  was  a  strong  opposition  to 
the  treaty,  and  it  was  not  certain  that  the  Senate  would  give 
the  required  two-thirds  vote  in  favor  of  confirming  it.  But 
there  was  a  favorable  majority  in  each  house,  and  this  was 
all  that  was  required  to  pass  a  joint  resolution  of  annexa- 
tion. After  much  discussion  such  a  resolution  was  passed, 
and  it  was  approved  by  President  McKinley  on  July  7,  1898. 

This  joint  resolution  established,  in  addition  to  other 
provisions,  that,  until  Congress  should  provide  for  the  gov- 
ernment of  the  islands,  "all  the  civil,  judicial,  and  military 
powers  exercised  by  the  officers  of  the  existing  government 
in  said  islands  shall  be  vested  in  such  person  or  persons  and 
shall  be  exercised  in  such  manner  as  the  President  of  the 
United  States  shall  direct,  and  the  President  shall  have 
power  to  remove  said  officers  and  fill  the  vacancies  so  occa- 
sioned." 

268 


THE    INSULAR  DEPENDENCIES  269 

In  April,  1900,  Congress  passed  "An  Act  to  Provide  a 
Government  for  the  Territory  of  Hawaii."  This  act  fixed 
the  capital  at  Honolulu.  It  declared  all  persons  who  were 
citizens  of  the  Hawaiian  Republic,  August  12,  1898,  to  be 
citizens  of  the  United  States  and  of  the  Territory  of  Hawaii. 
It  provided  that  the  laws  valid  in  the  Territory  of  Hawaii 
should  be,  (1)  the  Constitution  of  the  United  States;  (2)  the 
laws  of  the  United  States  except  as  otherwise  provided; 
(3)  the  laws  of  Hawaii  not  inconsistent  with  the  Constitution 
or  laws  of  the  United  States  or  the  provisions  of  the  Organic 
Act.  It  abolished  "  the  offices  of  president,  minister  of  for- 
eign affairs,  minister  of  the  interior,  minister  of  finance, 
minister  of  public  instruction,  auditor  general,  deputy  audi- 
tor general,  surveyor  general,  marshal,  and  deputy  marshal 
of  the  Republic  of  Hawaii,"  which  had  existed  under  the 
previous  government. 

The  law  organizing  the  Territory  of  Hawaii  established 
a  legislature  of  two  houses;  the  senate  to  be  composed  of 
fifteen  members,  and  the  house  of  representatives  of  thirty 
members.  It  was  provided  that  a  general  election  should 
be  "held  on  the  Tuesday  next  after  the  first  Monday  in 
November,  1900,  and  every  second  year  thereafter,"  and 
that  all  mature  male  persons  should  have  the  right  to  vote. 
The  senators  hold  office  for  four  years  and  the  representa- 
tives for  two  years.  The  Territory  is  divided  into  four  sen- 
atorial districts,  four  senators  being  elected  from  the  first, 
three  from  the  second,  six  from  the  third,  two  from  the 
fourth.  Representatives  are  elected  from  six  districts,  four 
from  each  of  three  districts  and  six  from  each  of  three 
others.  It  is  provided  in  the  organic  act  of  the  Territory 
of  Hawaii  that  the  legislature  may  create  counties,  and  town 
and  city  municipalities,  and  provide  governments  for  them. 

The  executive  power  is  vested  in  a  governor,  who  is 
appointed  by  the  President  with  the  advice  and  consent  of 
the  Senate.     There  is  also  a  secretary  of  the  Territory. 


270      THE   GOVERNMENT   OF  THE  UNITED   STATES 

Both  the  governor  and  the  secretary  are  appointed  for  a 
period  of  four  years.  "  In  case  of  the  death,  removal,  resig- 
nation, or  disabiUty  of  the  governor,  or  of  his  absence  from 
the  Territory,  the  secretary  shall  exercise  all  the  powers  and 
perform  all  the  duties  of  the  governor  during  such  vacancy, 
disability,  or  absence,  or  until  another  governor  is  appointed 
and  qualified."  The  other  officers  provided  for  are  an 
attorney-general,  who  in  addition  to  his  duties  as  attorney- 
general  shall  have  certain  of  the  powers  and  duties  of  the 
minister  of  the  interior;  a  treasurer,  who  shall  also  have 
certain  of  the  powers  and  duties  of  the  minister  of  finance, 
as  well  as  the  powers  and  duties  of  the  minister  of  the  in- 
terior relating  to  a  number  of  specified  subjects;  a  com- 
missioner of  public  lands;  a  commissioner  of  agriculture; 
a  superintendent  of  public  works;  a  superintendent  of 
public  instruction;  an  auditor;  a  deputy  auditor;  a  sur- 
veyor; and  a  high  sheriff. 

The  judicial  power  of  the  Territory  is  vested  in  one  su- 
preme court,  circuit  courts,  and  such  inferior  courts  as  the 
legislature  may  from  time  to  time  establish.  The  supreme 
court  shall  consist  of  one  chief  justice  and  two  associate 
justices,  citizens  of  Hawaii,  who  are  appointed  by  the  Pres- 
ident of  the  United  States.  In  addition  to  the  Territorial 
courts  already  mentioned,  there  is  established  in  the  Ter- 
ritory a  district  court  to  consist  of  one  judge,  who  is  re- 
quired to  reside  in  the  Territory  and  is  called  the  district 
judge.  He  is  appointed  by  the  President  of  the  United 
States,  and  in  connection  with  his  court  there  is  established 
a  district  attorney  and  a  marshal  of  the  United  States  for 
the  district,  each  holding  office  for  six  years  unless  sooner 
removed  by  the  President.  In  addition  to  the  ordinary 
jurisdiction  of  district  courts  of  the  United  States,  this  court 
shall  have  jurisdiction  of  all  cases  cognizable  in  a  circuit 
court  of  the  United  States,  and  shall  proceed  therein  in  the 
same  manner  as  a  circuit  court.     The  powers  of  the  judge, 


THE  INSULAR  DEPENDENCIES  271 

district  attorney,  and  marshal  are  such  as  arc  conferred  by 
the  laws  of  the  United  States  upon  the  judges,  district 
attorneys,  and  marshals  of  district  and  circuit  courts  of  the 
United  States. 

Topics. — The  annexation  of  lluwaii. — Hawaii  made  a  Terri- 
tory.— Laws  valid  in  Hawaii. — The  government  of  Hawaii:  the 
legislative;  the  executive;  the  judiciary. — United.  States  district 
court. 

References.— Hart,  Actual  Government,  344-346,  367,  374; 
An  Act  to  Provide  a  Government  for  the  Territory  of  Hawaii,  passed 
in  April,  1900. 

149.  The  Government  of  Porto  Rico. — Whenever  in  war 
an  invader  overthrows  a  general,  provincial,  or  local  govern- 
ment, "  he  shall  take  every  step  in  his  power  to  reestablish 
and  secure,  as  far  as  possible,  public  safety  and  social  order." 
In  1898  Porto  Rico  passed  under  the  control  of  the  United 
States  and  became  the  military  department  of  Porto  Rico. 
Over  it  was  placed  a  military  governor,  who  continued  to  be 
the  chief  executive  of  this  island  until  the  Organic  Act, 
approved  April  12,  1900,  was  put  in  force  on  the  first  of 
May  of  that  year.  This  act  provided  for  a  civil  government 
to  succeed  the  military  government.  This  government 
consists  of  a  governor,  an  executive  council,  a  house  of 
delegates,  and  a  system  of  courts.  The  governor  is  ap- 
pointed by  the  President  of  the  United  States  with  the 
advice  and  consent  of  the  Senate;  and  "he  shall  hold  his 
ofhce  for  a  term  of  four  j^ears  and  until  his  successor  is 
chosen  and  qualified,  unless  sooner  removed  by  the  Presi- 
dent." He  has  the  ordinary  powers  of  a  Territorial  execu- 
tive. He  grants  pardons  and  reprieves  for  offenses  against 
the  laws  of  Porto  Rico,  and  respites  for  offenses  against  the 
laws  of  the  United  States,  until  the  decision  of  the  President 
can  be  ascertained.  He  is  the  commander  in  chief  of  the 
militia  and  shall  at  all  times  faithfully  execute  the  laws. 


272       THE   GOVERNMENT  OF  THE  UNITED  STATES 

The  executive  council  is  composed  of  a  secretary,  an 
attorney-general,  a  treasurer,  an  auditor,  a  commissioner 
of  the  interior,  a  commissioner  of  education,  and  five  other 
persons,  all  of  whom  are  appointed  by  the  President  for  a 
term  of  four  years.  "  In  case  of  the  death,  removal,  resig- 
nation, or  disability  of  the  governor,  or  his  temporary 
absence  from  Porto  Rico,  the  secretary  shall  exercise  all 
the  powers  and  perform  all  the  duties  of  the  governor  during 
such  vacancy,  disability,  or  absence."  The  duties  of  the 
attorney-general  are  essentially  the  same  as  those  provided 
by  law  for  an  attorney  of  a  Territory  of  the  United  States. 
The  executive  council  and  another  house  called  the  house 
of  delegates  constitute  "the  legislative  assembly  of  Porto 
Rico."  Whatever  local  legislative  power  is  granted  by  the 
Organic  Act  is  held  by  the  legislative  assembly.  The  house 
of  delegates  consists  of  thirty-five  members  elected  bienni- 
ally by  the  qualified  voters.  For  the  purpose  of  their  elec- 
tion Porto  Rico  is  divided  into  seven  districts,  composed  of 
contiguous  territory  and  as  nearly  equal  as  may  be  in  popu- 
lation; and  each  district  is  entitled  to  five  members  of  the 
house  of  delegates. 

The  system  of  courts  as  at  present  organized  includes 
police  magistrates,  municipal  courts,  district  courts,  a  su- 
preme court,  and  a  United  States  district  court. 

Topics. — Transfer  of  Porto  Rico  from  Spain  to  the  United 
States. — The  civil  governor. — The  executive  council. — The  secre- 
tary.— The  attorney-general. — The  house  of  delegates. — The  system 
of  courts. 

References.— Hart,  Actual  Government,  19,  344-346,  367; 
Rowe,  Porto  Rico,  sec  Index. 

150.  The  Government  of  the  Philippine  Islands. — The 
Philippine  Islands  were  brought  under  the  authority  of  the 
United  States  by  the  Treaty  of  Paris,  dated  December  10, 
1898.     This  treaty  closed  the  war  with  Spain.     The  islands 


THE   IXSULAR   DEPENDENCIES  273 

were  at  first  controlled  by  the  army  directed  by  the  Presi- 
dent through  the  Secretary  of  War.  They  were  made  a 
military  division;  and  the  commanding  general  of  the 
division  became,  in  the  course  of  time,  the  military  governor 
of  the  Philippines.  In  his  double  capacity  as  commanding 
general  and  military  governor  he  directed  both  the  military 
affairs  and  the  civil  administration  of  the  islands.  A  few 
months  after  Manila  was  occupied  by  American  troops, 
some  of  the  inhabitants  of  the  archipelago  rebelled  against 
the  United  States;  and  while  this  rebellion  lasted,  many 
provinces  suffered  great  internal  disorder.  This  confusion 
arose  from  the  facts  that  the  power  of  Spain  was  overthrown; 
that  the  political  organization  formed  by  the  Filipinos  failed 
to  perform  the  proper  functions  of  a  government;  and  that 
the  authority  of  the  United  States  was  acknowledged  only 
within  lines  established  by  the  army. 

When  the  bulk  of  the  inhabitants  had  assumed  a  peaceful 
attitude  toward  the  United  States,  the  President  made 
provision  in  the  spring  of  1900,  for  establishing  civil  govern- 
ment to  succeed  military  rule.  He  appointed  five  com- 
missioners "  to  continue  and  perfect  the  work  of  organizing 
and  establishing  civil  government,  already  commenced  by 
the  military  authorities."  On  the  seventh  of  April,  1900, 
he  issued  instructions  to  the  Secretary  of  War  ^  for  the 
guidance  of  the  commissioners  in  carrying  out  his  purposes. 

The  functions  of  the  Commission  are  indicated  in  the  fol- 
lowing extract  from  the  President's  instructions:  "Begin- 
ning with  the  first  day  of  September,  1900,  the  authority  to 
exercise,  subject  to  my  approval,  through  the  Secretary  of 
War,  that  part  of  the  power  of  government  in  the  Philippine 
Islands,  which  is  of  a  legislative  nature,  is  to  be  transferred 
from  the  military  governor  of  the  islands  to  this  commis- 
sion, to  be  thereafter  exercised  by  them  in  the  place  and 

*  See  Appendix,  page  402. 


274       THE  GOVERNMENT  OF  THE  UNITED  STATES 

stead  of  the  military  governor,  under  such  rules  and  regu- 
lations as  you  shall  prescribe,  until  the  establishment  of  the 
civil  central  government  for  the  islands  contemplated  in 
the  last  foregoing  paragraph,  or  vmtil  Congress  shall  other- 
wise provide.  Exercise  of  this  legislative  authority  will 
include  the  making  of  rules  and  orders,  having  the  effect  of 
law,  for  the  raising  of  revenue  by  taxes,  customs  duties,  and 
imposts;  the  appropriation  and  expenditure  of  public  funds 
of  the  islands;  the  establishment  of  an  educational  system 
throughout  the  islands;  the  establishment  of  a  system  to 
secure  an  efficient  civil  service;  the  organization  and  estab- 
lishment of  courts;  the  organization  and  establishment  of 
municipal  and  departmental  governments,  and  all  other 
matters  of  a  civil  nature  for  which  the  military  governor 
is  now  competent  to  provide  by  rules  or  orders  of  a  legis- 
lative character. 

"  The  Commission  will  also  have  power,  during  the  same 
period,  to  appoint  to  office  such  officers  under  the  judicial, 
educational,  and  civil-service  system,  and  the  municipal 
and  departmental  governments,  as  shall  be  provided  for. 
Until  the  complete  transfer  of  control  the  military  governor 
will  remain  the  chief  executive  head  of  the  government  of 
the  islands,  and  will  exercise  the  executive  authority  now 
possessed  by  him  and  not  herein  expressly  assigned  to  the 
Commission,  subject,  however,  to  the  rules  and  orders  en- 
acted by  the  Commission  in  the  exercise  of  the  legislative 
powers  conferred  upon  them.  In  the  meantime,  the  munici- 
pal and  departmental  governments  will  continue  to  report 
to  the  military  governor,  and  be  subject  to  his  administra- 
tive supervision  and  control,  under  your  direction;  but  that 
supervision  and  control  will  be  confined  within  the  narrowest 
limits  consistent  with  the  requirement,  that  the  powers  of 
government  in  the  municipalities  and  departments  shall 
be  honestly  and  effectively  exercised,  and  that  law  and 
order  and  individual  freedom  shall  be  maintained." 


THE  INSULAR   DEPENDENCIES  275 

The  second  phase  of  the  civil  government  of  the  Phihp- 
pines  was  that  in  which  the  President  acted  under  the 
authority  conveyed  by  Congress  in  the  amendment  to  the 
Army  Appropriation  Act,  approved  March  2,  1901,  wliicli 
provided  that  all  militar}-,  civil,  and  judicial  powers  neces- 
sary to  govern  the  Philippine  Islands  should  be  vested  in 
such  person  and  persons  and  should  be  exercised  in  such  a 
manner  as  the  President  of  the  United  States  might  direct. 

A  third  pliase  of  the  government  was  introduced,  July  4, 
1901,.  by  the  appointment  of  a  civil  governor  to  take  the 
place  of  the  military  governor.  The  president  of  the  Com- 
mission was  made  civil  governor;  and  the  four  other  mem- 
bers, with  the  title  of  secretary,  were  made  the  heads  of  four 
executive  departments.  The  executive  power  was  vested 
in  the  governor  assisted  by  the  heads  of  the  four  executive 
departments.  The  legislative  power  was  vested  in  the 
Commission  composed  of  the  governor,  the  four  secretaries, 
and  three  Filipino  members.  The  judiciary  embraced  a 
supreme  court,  a  number  of  courts  of  first  instance,  munici- 
pal courts,  and  justices  of  the  peace.  The  courts  of  first 
instance  hold  a  position  similar  to  that  of  the  county  court 
or  the  superior  court  of  a  State;  and  from  them  cases  may 
be  appealed  to  the  supreme  court  of  the  archipelago.  The 
judgments  and  decrees  of  this  supreme  court,  in  cases  in- 
volving more  than  twenty-five  thousand  dollars,  may  be 
reversed,  modified,  or  affirmed  by  the  Supreme  Court  of  the 
United  States. 

The  fourth  phase  of  the  government  was  introduced  l)y 
the  creation  and  organization  of  the  Philippine  Assembly, 
consisting  of  eighty  members  elected  by  popular  vote  under 
the  election  law  enacted  by  the  Commission,  January  0. 
1907.  This  body  held  its  first  meeting,  and  was  addressed 
by  William  H.  Taft,  Secretary  of  War.  on  October  16,  1907. 
It  is  the  popular  house  of  the  legislature  the  Commission 
as   previously  organized   forming  the  upper  house.     It  has 


276        THE  GOVERNMENT  OF  THE  UNITED  STATES 

a  right  to  initiate  legislation,  to  modify,  amend,  shape,  or 
defeat  legislation  proposed  by  the  Commission;  but  the 
power  to  obstruct  by  withholding  appropriations  is  taken 
away  from  the  Assembl5^  If  there  is  disagreement  as  to  ap- 
propriations between  the  Commission  and  the  Assembly,  those 
of  the  previous  year  will  be  continued.  The  government 
has  thus  assumed  the  usual  form  of  European  and  American 
governments  ;  an  executive  with  two  legislative  houses. 

Topics. — The  islands  under  military  authority. — Rebellion  and 
internal  confusion. — The  United  States  Philippine  Commission. — • 
President  McKinley's  instructions. — Second  phase  of  the  civil 
government. — ^Third  phase. — Appeal  to  United  States  Supreme 
Court. — The  Assembly. 

References Reports  of  the  Philippine  Commission,  1900, 1901, 

1902;  Public  Laws  and  Resolutions  of  the  United  States  Philippine 
Commission. 

151.    Municipal   Government    in   the   Philippines. — The 

existing  municipal  governments  in  the  Philippine  Islands 
were  established  under  "  A  General  Act  for  the  Organization 
of  Municipal  Governments  in  the  Philippine  Islands," 
passed  by  the  Commission,  January  31,  1901.  This  act  was 
not  made  applicable  to  the  city  of  Manila,  nor  to  the  villages 
of  certain  wild  tribes.  The  government  of  each  municipal- 
ity established  under  this  act  consisted  of  a  president,  a 
vice  president,  and  a  municipal  council.  These  officers  are 
elected;  and  the  voter  for  them  must  be  at  least  twenty- 
three  years  of  age  and  a  resident  of  the  municipality  for  a 
period  of  six  months  immediately  preceding  the  election, 
not  a  citizen  or  subject  of  any  foreign  power,  and  must  be 
included  in  one  of  the  following  classes: 

(1)  Those  male  persons  who,  prior  to  the  thirteenth  of 
August,  1898,  held  a  municipal  office;  (2)  those  male  persons 
who  own   real  property  to  the  value  of  500  pesos,  or  who 


THE  INSULAR  DEPENDENCIES  277 

annually  pay  30  pesos  or  more  of  the  established  taxes; 
(3)  those  male  persons  who  speak,  read,  or  write  English  or 
Spanish. 

Topics. — The  general  Municipal  Government  Act. — Officers  of 
the  town. — Voters  and  the  basis  of  suffrage. 

References. — Public  Laws  of  the  United  States  Philippine  Com- 
mission, No.  82 :  The  Municipal  Code. 

152.  The  Government  of  Manila. — The  government  of 
Manila  holds  a  very  close  relation  to  the  Insular  Govern- 
ment. It  was  suggested  by  the  government  of  Washington. 
As  provided  in  Section  4  of  the  Manila  charter,  "The 
government  of  said  city  is  hereby  vested  in  a  municipal 
board,  consisting  of  three  members,  to  be  appointed  by  the 
civil  governor,  by  and  with  the  consent  of  the  Commission, 
and  to  be  removable  in  the  same  manner.  One  member 
of  the  board  shall  be  designated  in  the  appointment  as  presi- 
dent and  shall  preside  at  all  meetings  of  the  board.  He 
shall  sign  all  ordinances,  resolutions,  bonds,  contracts,  and 
obligations  made  or  authorized  by  the  board,  and  shall 
issue  such  orders  and  instructions  as  may  be  necessary  to 
carry  out  and  enforce  the  ordinances  of  the  city,  and  the 
orders  of  the  board  relating  thereto.  In  case  of  sickness 
or  prolonged  absence  of  any  member  of  the  board,  or  if  for 
any  reason  it  becomes  necessary  to  maintain  a  quorum  or  to 
break  a  tic,  the  civil  governor  may  make  temporary  appoint- 
ment until  the  return  of  such  absent  member  or  members. 
The  person  so  appointed  shall  possess  all  the  rights  and 
perform  all  the  duties  of  a  member  of  the  board." 

There  is  also  a  secretary  of  the  municipal  board,  ap- 
pointed in  the  first  instance  by  the  civil  governor,  by  and 
with  the  consent  of  the  Commission.  His  successors  shall 
be  appointed  by  the  municipal  board,  subject  to  the  pro- 
visions of  the  Civil  Service  Act.  There  is  also  a  disbursing 
officer  of  the  board,  who  is  "  charged  with  the  duty  of  dis- 


278      THE  GOVERNMENT  OF   THE  UNITED  STATES 

bursing  all  moneys  drawn  from  the  insular  treasury  pur- 
suant to  appropriations  made  by  the  Commission." 

The  municipal  board  of  the  city  of  Manila  exercises  both 
legislative  and  executive  authority.  Its  executive  power 
is  exercised  "through  the  following  departments,  and  by 
general  supervisory  control  over  the  same:  (1)  Department 
of  Engineering  and  Public  Works;  (2)  Police  Department; 
(3)  Law  Department;  (4)  Department  of  Fires  and  Public 
Inspection;  (5)  Department  of  Assessments  and  Collections." 
The  heads  of  these  departments,  assistant  heads,  and  all 
superintendents  therein  are  appointed  by  the  civil  governor 
by  and  with  the  consent  of  the  Commission. 

The  insular  auditor  audits  the  city  accounts;  the 
insular  treasurer  keeps  the  money  of  the  city;  the  insular 
purchasing  agent  makes  purchases  for  the  city;  the  insular 
board  of  health  makes  provision  for  the  health  of  the  city; 
the  insular  prison,  Bilibid,  receives  the  city  prisoners;  and 
the  general  superintendent  of  public  instruction  exercises 
the  same  jurisdiction  and  powers  in  the  city  of  Manila  as 
elsewhere  in  the  archipelago. 

Topics. — Model  for  government  of  Manila. — The  officers  and 
their  duties. — Powers  of  the  municipal  board. — Departments  under 
it. — Connection  with  the  Insular  Government. 

References. — Public  Laws  of  the  United  States  Philippine 
Commission,  No.  183:  An  Act  to  Incorporate  the  City  of  Manila. 

153.  The  Provincial  Government. — The  Insular,  or  cen- 
tral. Government  exercises  authority  over  the  whole  archi- 
pelago. The  authority  of  the  Municipal  Government  is 
confined  in  each  case  to  the  territory  of  the  township  or 
municipality.  Between  these  two  lies  the  government  of 
the  province.  The  governments  of  this  class  were  organized 
under  the  Provincial  Government  Act,  enacted  in  Manila  in 
February,  1901.  In  accordance  with  this  act  the  Provincial 
Government  consists  of  five  pfRqers.    These  (irc  a  governor, 


THE  IXSULAR   DEPENDENCIES  279 

a  supervisor,  a  treasurer,  an  attorney,  and  a  secretary. 
The  governor,  the  supervisor,  and  the  treasurer  of  the 
province  constitute  the  provincial  board.  The  governor  is 
elected  by  a  provincial  assembly,  or  electoral  college,  com- 
posed of  the  members  of  the  town  councils  of  the  organized 
municipalities  of  the  province.  The  supervisor  is  required 
to  be  a  civil  engineer,  since  upon  him  falls  the  business  of 
building  roads  and  bridges  and  the  other  public  works  of  the 
province.  The  supervisor  and  the  treasurer  arc  in  the 
classified  civil  service,  and  are  appointed  by  the  civil 
governor  of  the  archipelago. 

In  the  government  of  the  Philippine  Islands  there  are 
two  groups  of  elected  officers.  The  first  group  consists  of 
the  municipal  officers,  who  are  chosen  at  large  by  the  quali- 
fied electors  of  the  municipalities.  The  second  group  of 
elected  oflScers  consists  of  the  governors  of  the  several 
provinces,  who  in  each  case  are  elected  by  the  provincial 
assembly.  The  provincial  assembly  is  composed  of  the 
members  of  the  town  councils  of  the  various  towns  in  the 
province.  The  second  election  thus  depends  on  the  first, 
and  the  first  is  made  by  the  restricted  list  of  voters  who 
participate  in  the  municipal  elections. 

Topics. — The  Provincial  Government  Act. — Officers  of  the 
Provincial  Government. — Elections  in  the  Philippines. 

References. — Public  Laws  of  the  United  States  rhilippine 
Commission,  No.  83  ;  The  Provincial  Government  Act. 

FOR   ADVANCED   STUDY 

The  Government  of  Dependencies. — Lewis,  The  Govern- 
ment of  Dependencies;  llcinsch,  Culoninl  Government;  Harvard  Law 
Review,  xii,  305-410. 

The  Government  of  Porto  Rico. — Reports  of  the  Governor  of 
Porto  Rico;  Rowe,  The  United  States  and  Porto  Rico;  Forum,  2.S: 
257-267,  403-411;  30:  717-721;  North  American  Review,  172: 
1-22. 


280       THE  GOVERNMENT  OF  THE  UNITED  STATES 

Civil  Government  in  tlie  Philippines. — Reports  of  Philip- 
pine Commission,  1900,  1901,  1902;  Outlook,  71  (1902):  305-321; 
North  American  Revieio,  175  (1902):  299-30S. 

Decisions  in  the  ••Insular  Cases."— Outlook,  68  (1901): 
337-339,  175  (1901):  962-965;  North  American  Review,  173  (1901): 
145-153,  577-593;  Rowe,  The  United  States  and  Porto  Rico,  39-82. 

Educational  Policy  of  Philippine  Government. — First 
Annual  Report  of  Secretary  of  Public  Instruction,  in  Report  of  Philip- 
pine Commission,  1902,  ii,  867-902;  International  Quarterly,  9:  1-15. 

Land  Policy  of  the  United  States. — McMaster,  History  of 
the  United  States,  ii,  476-478;  iii,  89-121;  Schouler,  History  of  the 
United  States,  i,  97-101,  198,  199;  ii,  84,  85;  iii,  191,  192;  iv,  66-68, 
152-156;  Donaldson,  The  Public  Domain. 


CHAPTER  XI 

THE  GOVERNMENT  OF  THE  STATES 

154.  Federal  and  State  Governments. — The  Federal 
Government  represents  the  nation  in  foreign  affairs.  The 
Federal  Government  speaks  to  the  governments  of  other 
nations  and  receives  from  them  whatever  communication 
they  may  wish  to  make  to  it.  Both  the  Federal  and  the 
State  governments  exercise  legislative,  executive,  and 
judicial  powers;  both  enact  laws  which  affect  the  individual 
citizens  directly;  both  enforce  these  laws  without  the  in- 
tervention of  any  officers  except  those  who  belong  to  their 
several  administrative  systems;  and  both  hear  and  decide 
cases  in  courts.  But  the  Federal  Government  alone  repre- 
sents the  nation  in  international  affairs.  Every  sovereign 
nation  has  a  central  national  government,  and  every  sover- 
eign nation  has  a  certain  form  of  local  government  which 
performs  some  of  the  functions  of  the  State  governments; 
but  few  nations  possess  district  governments  that  have 
attained  the  same  degree  of  individuality  and  imjwrtance 
as  tlie  State  governments  of  the  United  States.  Tlie  can- 
tons of  Switzerland  and  the  subordinate  states  in  the  German 
Empire  present  the  closest  parallel. 

In  the  early  history  of  the  United  States  it  was  thought 
that  greater  honor  and  dignity  attached  to  offices  in  the 
State  than  to  offices  in  the  Federal  Government.  Certain 
conditions,  such  as  the  separate  origin  and  strong  individ- 
uality of  the  colonies,  indicated  the  probability  of  a  con- 
19  281 


282      THE   GOVERNMENT  OF  THE   UNITED  STATES 

tinued  growth  of  this  sentiment.  The  relative  importance 
and  the  individuahty  of  the  State  were  strengthened  by  the 
difficulty  of  communication  between  the  States;  but  the 
events  of  the  later  history  of  the  country,  which  have  con- 
firmed and  exalted  the  national  Government,  have  changed 
the  popular  estimation  of  the  two  governments.  Persons 
seeking  important  places  in  the  public  service  are  not  dis- 
posed now,  as  they  were  formerly,  to  resign  a  position  under 
the  Federal  Government  to  take  a  State  office.  At  present 
the  highest  office  of  the  State  is  often  considered  a  stepping- 
stone  to  a  desired  Federal  office.  A  growing  national  sen- 
timent has  magnified  the  public  estimate  of  the  Federal 
Government.  Professor  Bryce  says,  "The  State  set  out 
as  an  isolated  and  self-sufficing  commonwealth.  It  is  now 
merely  a  part  of  a  far  grander  whole,  which  seems  to  be 
slowly  absorbing  its  functions  and  stunting  its  growth,  as 
the  great  tree  stunts  the  shrubs  over  which  its  spreading 
boughs  have  begun  to  cast  their  shade." 

Topics. — The  Federal  Government  and  foreign  affairs. — 
Central  and  local  government. — Relative  importance  of  State  and 
Federal  offices. 

References. — Bryce,  American  Commonwealth,  i,  537;  in  gen- 
eral, Chaps.  XXXVI-XLVI;  Hart,  Actual  Government,  see  Index 
under  State  Government;  Cooley,  Constitutional  Law,  32. 

155.  The  State  in  the  American  Union  and  Its  Functions. 

^Thc  State  in  the  American  Union  is  a  subordinate  political 
body.  It  possesses  all  the  essential  forms  of  the  national 
Government  except  those  designed  for  maintaining  relations 
with  foreign  powers.  Its  organization  embraces  a  con- 
stitution adopted  by  the  direct  vote  of  the  people,  a  gov- 
ernor and  other  executive  officers,  a  legislature  of  two  houses, 
a  system  of  local  governments  in  counties,  cities,  townships, 
and  school  districts.  It  may  establish  a  system  of  taxation ; 
it  may  contract  debts;  it  may  form  a  system  of  laws  cover- 


THE  GOVERNMENT  OF  THE  STATES  283 

ing  the  law  of  real  and  personal  property,  of  contracts,  of 
torts, ^  and  of  family  relations.  It  may  adopt  a  code  of 
judicial  procedure;  it  may  establish  a  system  of  courts  for 
the  trial  of  cases  arising  under  State  law  as  distinctive  from 
the  Federal  Constitution  and  the  laws  enacted  by  Congress. 
It  may  prescribe  the  conditions  under  which  a  person  may 
be  admitted  to  active  citizenship  or  to  the  enjoyment  of 
political  rights  in  the  nation.  The  Federal  Government 
does  not  fix  the  conditions  which  must  be  fulfilled  by  those 
persons  who  would  vote  for  members  of  Congress  or  other 
elective  officers.  It  accepts  the  conditions  fixed  by  each 
State.  Any  person  who  is  by  law  permitted  to  vote  in 
State  elections  may  vote  in  congressional  or  presidential 
elections.  The  only  restrictions  on  the  power  of  the  State 
in  this  matter  are  those  contained  in  the  fourteenth 
and  fifteenth  amendments  to  the  Federal  Constitution. 
The  principal  purpose  of  these  limitations  was  to  enable 
the  Government  to  carry  out  its  determination  to  give  the 
negroes,  recently  in  slavery,  the  same  political  rights  that 
were  enjoyed  by  the  other  citizens  of  the  several  States. 
The  extent  of  the  State's  authority  over  its  subordinate 
communities  is  complete.  This  is  indicated  by  the  fact 
that  a  municipality  is  an  organized  body,  and  that  the  char- 
ter of  a  municipality  is  an  act  passed  by  a  State  legislature 
and  may  be  repealed  or  modified  at  the  will  of  the  legis- 
lature. 

The  functions  of  a  State  government  and  of  all  subor- 
dinate institutions  of  a  State  are  limited  by  the  rights  of  the 
Federal  Government.  Thus  a  State  cannot  declare  war 
or  make  peace,  or  form  a  treaty,  or  make  an  alliance,  with 
a  foreign  power;  or  regulate  interstate  commerce.  Cities, 
counties,  and  towns  organized  as  corporations  in  a  State 
"are  never  intrusted  and  can  never  be  intrusted  with  any 

*  Wrongful  acts  on  account  of  which  civil  action  may  be  brought. 


284       THE   GOVERNMENT  OF  THE  UNITED  STATES 

legislative  power  inconsistent  or  conflicting  with  the  general 
laws  of  the  land,  or  derogatory  to  those  rights  either  of  per- 
sons or  of  property  which  the  Constitution  and  the  general 
laws  guarantee.  They  are  strictly  subordinate  to  the  general 
laws,  and  are  created  merely  to  carry  out  the  purposes  of 
those  laws  with  more  certainty  and  efficiency."  Recent 
State  constitutions  have,  moreover,  laid  somewhat  narrow 
restrictions  on  the  actual  governments,  particularly  on  the 
legislatures,  of  the  States.  While  it  is  possible  for  the 
Federal  Government  to  deal  directly  with  the  persons  and 
the  affairs  of  the  individual  citizens,  it  is  nevertheless  the 
State  government  that  concerns  itself  more  immediately 
with  the  individual  citizen's  interests.  It  is  the  State,  in 
the  exercise  of  its  police  powers,  that  citizens  rely  upon 
for  the  protection  of  their  lives,  health,  comfort  and 
property. 

The  State  creates  the  corporations  through  which  the 
bulk  of  modern  industrial  affairs  are  carried  on,  as  well  as 
the  corporations  instituted  for  the  purposes  of  local  govern- 
ment. By  this  activity  it  calls  into  being  the  two  most 
powerful  influences  that  affect  the  life  of  modern  society. 
But  the  function  of  the  State  is  not  limited  to  the  creation 
of  corporations;  it  may  also  control  them.  In  this  there 
are  presented  opportunities  for  wise  and  beneficent  action 
on  the  part  of  the  officers  of  the  State,  as  well  as  oppor- 
tunities for  corruption  and  the  display  of  baneful  folly. 
The  State  may  not  only  create  a  corporation,  but  it  may 
even  prescribe  the  manner  in  which  the  corporation  shall 
perform  its  work.  "  In  the  case  of  railroads,  they  are 
usually  constructed  and  maintained  by  private  capital, 
but  they  possess  public  functions  which  render  them 
subject  to  State  regulation,  apart  from  such  regula- 
tions as  the  public  safety  requires.  To  secure  safety  the 
State  may  regulate  the  grade  of  the  road  and  the  man- 
ner of  crossing  other  roads;    it  may  prescribe  the  signals 


THE   GOVERNMENT  OF  THE  STATES  285 

to  be  given  at  dangerous  places;  it  may  compel  the  road 
to  fence  in  its  tracks,  and  it  may  regulate  the  speed  of 
trains." 

But  it  may  happen  that  a  corporation  created  by  a  State 
will  in  the  course  of  time  extend  its  interests  and  its  opera- 
tions over  two  or  more  States.  In  this  case  it  is  evident 
that  the  regulating  power  of  the  State  that  created  the 
corporation  is  confined  within  the  State's  limits.  This  has 
happened  in  the  case  of  railroad  corporations;  and  the 
inability  of  any  State  to  render  the  control  demanded  by 
the  circumstances  led  to  the  creation  of  the  Interstate 
Commerce  Commission  as  an  arm  of  the  Federal  Govern- 
ment. 

It  is,  moreover,  to  the  State  that  the  bulk  of  the  in- 
habitants look  for  the  means  of  education.  The  State 
maintains  the  public  schools.  The  State  establishes  and 
supports  institutions  for  the  care  of  the  feeble-minded  and 
the  insane.  The  national  Government,  wishing  trained 
officers  for  the  army  and  the  navy,  makes  provision  for  their 
education  at  West  Point  and  Annapolis.  But  generally 
the  assistance  of  the  Federal  Government  in  the  work  of 
education  has  been  rendered  in  the  form  of  land  grants  to 
States.  The  State  touches  the  individual  at  more  points 
than  does  the  Federal  Government. 

The  administration  of  the  affairs  of  the  common  schools, 
in  the  majority  of  the  States,  engages  the  services  of  a  State 
executive  officer — namely,  the  superintendent  of  public 
instruction — and  subordinate  superintendents  of  counties 
and  cities,  together  with  State,  county,  and  city  boards  of 
education.  These  officers  are  put  in  the  positions  they  hold 
by  various  methods  of  election  and  appointment.  The 
system  of  public  instruction  as  carried  out  in  many  of  the 
States  embraces  primary,  intermediate,  and  high  schools; 
a  State  university;  and  State,  county,  and  city  normal 
schools. 


28G      THE   GOVERNMENT  OF  THE  UNITED   STATES 

Topics. — Main  features  of  a  State  government.  Limitation  of 
State  action:  by  Federal  authority;  by  the  State  constitution. — 
The  extent  of  State  power. — Interstate  Commerce  Commission. — 
Tile  State  and  education. 

References. — Bryce,  Ajnerican  Commonwealth,  i,  310,  320, 
400-505;  Hart,  Actual  Government,  114-126;  Lalor,  Cyclopa:dta,  iii, 
800-S12;  Ford,  American  Citizen's  Manual,  Part  II,  70. 

156.  Antecedents  of  State  Constitutions. — Each  State  in 
the  Union  has  an  organization  similar  in  many  respects  to 
that  of  an  independent  nation.  Like  Switzerland,  France, 
the  German  Empire,  or  the  United  States,  it  has  a  con- 
stitution or  fundamental  law  which  prescribes  the  organiza- 
tion of  the  several  departments  of  government  and  conveys 
to  each  department  the  power  to  be  exercised  by  it.  The 
State  constitution  holds  essentially  the  same  relation  to  the 
State  legislature  that  the  Federal  Constitution  holds  to 
Congress.  It  is  above  the  legislature  and  cannot  be 
amended  or  modified  by  that  body.  It  is  adopted  by  the 
direct  vote  of  the  electors  of  the  State,  and  they  alone  can 
amend  or  repeal  it.  All  State  statutes  which  are  found  to 
be  in  opposition  to  its  provisions  are  invalid.  It  is  the 
direct  successor  of  the  colonial  charter;  and  the  colonial 
charters  in  force  at  the  beginning  of  the  War  of  Independ- 
ence had  their  legitimate  ancestors  in  the  charters  granted 
to  the  merchant  guilds  and  trading  companies  of  early 
Europe.  The  trading  company's  charter  grew  into  a  con- 
stitution under  the  necessity  of  making  more  extensive 
provisions  for  political  control.  When  the  bond  was 
severed  which  bound  the  English  colonies  in  America  to 
the  Crown,  the  power  to  modify  the  charter  of  any  one  of 
these  colonies  fell,  in  accordance  with  the  theory  of  popular 
government  announced  in  the  Declaration  of  Independence, 
into  the  hands  of  the  people  of  the  colony.  The  trading 
company  grew  into  circumstances  where  it  was  obliged  to 


THE  GOVERNMENT  OF   THE  STATES  287 

exercise  political  power;  and  the  charter,  modified  from 
time  to  time,  conferred  this  power.  The  company  grew 
into  the  colony  and  the  colony  into  the  State. 

Topics. — Position  of  State  constitution. — Its  line  of  descent. 

References. — Bryce,  American  Commonwealth,  i,  27,  413, 
458;  Hart,  Actual  Government,  46-48;  Fiske,  CivH  Government, 
167-172. 


157.  The  Formation  of  a  State  Constitution. — A  State 
constitution  is  a  law  adopted  by  the  voters  of  the  State.  In 
case  the  State  is  already  organized,  the  voters  decide  whether 
the  constitution  shall  be  revised  as  a  whole  or  only  amended 
in  certain  parts.  The  initiative  in  presenting  this  question 
to  the  voters  is  taken  by  the  legislature.  The  reformed 
constitution  is  usually  framed  by  a  convention.  A  con- 
vention elected  by  popular  vote  for  this  purpose  has  no 
power  to  establish  the  constitution  as  an  authoritative  law. 
When  the  draft  of  the  proposed  constitution  has  been  com- 
pleted by  the  convention,  it  is  submitted  by  that  body  to 
the  voters.  The  convention  is  then  dissolved.  It  is  not 
convenient  to  bring  all  the  voters  of  the  State  together  in 
one  place  to  vote,  as  is  done  in  a  number  of  the  Swiss  cantons 
or  as  was  formerly  done  in  the  ancient  Teutonic  tribes. 
The  question  of  adopting  or  rejecting  the  proposed  con- 
stitution is  therefore  submitted  to  the  voters  at  their 
ordinary  places  of  voting.  They  usually  vote  to  adopt  or 
reject  the  draft  as  a  whole,  but  sometimes  provision  is  made 
to  enable  them  to  accept  some  parts  and  to  reject  other 
parts.  The  constitution  of  a  State  is  thus  a  fundamental 
law  adopted  directly  by  the  voters  of  the  State;  and, 
following  the  same  course  of  procedure,  it  may  be  amended 
by  them  at  any  time.^ 

'  See  §§  14G,  160. 


288      THE   GOVERNMENT   OF  THE  UNITED   STATES 

Topics. — The  initiative  in  making  or  revising  a  State  consti- 
tution.— The  convention. — ]\Iethod  of  procedure. — Character  of 
State  constitution. 

References. — Bryce,  American  Commonwealth,  i,  418,  419, 
662-6G4,  456;  Hart,  Actual  Government,  59-63. 

158.  Growth  of  State  Constitutions. — We  may  note 
three  periods  in  the  growth  of  State  constitutions.  The 
first  period  embraces  the  early  history  of  those  constitu- 
tions that  were  inherited  from  the  colonies  and  were  modi- 
fied to  suit  the  new  conditions,  and  those  that  were  framed 
under  influences  proceeding  from  the  struggle  for  independ- 
ence. The  colonies  had  revolted  against  the  arbitrary 
power  of  the  king;  and  in  modifying  their  charters  or  in 
forming  new  constitutions  they  sought  to  avoid  placing 
much  power  in  the  hands  of  one  man,  whether  as  a  civil 
executive  or  as  a  military  officer.  The  people  of  the  original 
States  favored  the  legislature  and  feared  the  executive. 
In  most  of  the  States  the  governors  were  elected  by  the 
legislatures.  They  were  checked  in  their  authority  by  a 
council,  but  they  had  no  part  in  creating  this  council.  They 
had  no  power  to  veto  the  acts  of  the  legislature,  and  the 
right  enjoyed  by  the  royal  governors  during  the  colonial 
period  to  adjourn  or  dissolve  the  legislature  disappeared 
with  England's  authority.  The  voters  had  not  asserted 
their  claim  to  direct  interference  in  the  affairs  of  government, 
and  at  that  time  government  by  the  people  seemed  to  mean 
government  by  the  legislature.  This  first  phase  in  the 
history  of  State  constitutions  belongs  to  the  period  ending 
with  the  first  decade  of  the  nineteenth  century. 

The  second  phase  in  the  growth  of  State  constitutions 
appears  in  the  period  of  fifty  years  immediately  preceding 
the  Civil  War.  This  was  the  period  when  the  people  were 
becoming  more  and  more  democratic.  The  social  tradi- 
tions and  practices  derived  from  England  were  modified  by 


THE   GOVERNMENT  OF  THE  STATES  289 

the  spiiit  of  equality;  and  this  spirit  was  fostered  by  the 
equahty  of  material  conditions  that  prevailed  among  the 
people  of  the  early  States,  who  were  devoted  almost  ex- 
clusively to  agriculture.  The  most  striking  changes  in 
this  period  were:  (1)  That  the  rehcs  of  the  connection  be- 
tween the  Church  and  the  State  were  swept  away;  (2)  that 
the  practice  of  adopting  State  constitutions  by  direct  popular 
vote  was  established;  (3)  that  it  became  customary  to  have 
the  governor  elected  by  the  people  instead  of  by  the  legis- 
lature; (4)  that  the  suffrage  was  greatly  extended,  and 
property  qualifications  were  abolished;  (5)  that  many 
judges  heretofore  appointed  became  elected. 

The  third  phase  of  this  growth  belongs  to  the  period 
since  the  Civil  War.  The  changes  observed  in  this  period 
tend  to  strengthen  the  position  of  the  executive  and  judi- 
ciary departments  of  the  State  government.  The  governor 
is  given  a  limited  veto  on  acts  passed  by  the  legislature; 
his  term  of  office  is  somewhat  lengthened;  and  restrictions 
on  reeligibility  are  removed.  The  salaries  of  the  judges 
have  been  increased;  their  terms  of  office  lengthened;  and 
a  strong  opinion  has  appeared  in  favor  of  their  appoint- 
ment by  the  executive  and  in  opposition  to  their  election 
by  the  people.  At  the  same  time  important  restrictions 
have  been  placed  on  the  legislature,  while  the  people  have 
legislated  directly  on  many  subjects  through  provisions  in- 
troduced into  the  State  constitutions. 

Topics. — First  period  ingrowth  of  State  ronsfitufioiis. — Consti- 
tutional provisions  of  first  period. — Second  period. — Characteristics 
of  second  period. — Third  period. — Changes  effected  in  third  period. 

References. — Bryce,  American  Commonwealth,  i,  434-440; 
Fiskc,  Civil  Government,  195-208;  Hitchcock,  American  State  Con- 
stitutions, 1-60. 

159.  State  Constitutions  Restrictive.— Any  provision  of 
a  State  constitution,  as  well  as  a  law  passed  by  Congress,  is 


290      THE   GOVERNMENT   OF   THE   UNITED   STATES 

invalid  if  found  to  be  in  conflict  with  the  Federal  Constitu- 
tion. Moreover,  the  constitution  of  a  State  hmits  the 
power  of  the  State  legislature  so  that  a  law  passed  by  that 
body  is  invalid  if  found  to  be  in  conflict  with  the  State 
constitution.  The  question  as  to  whether  there  is  or  is  not 
conflict  is  determined  by  the  courts  in  adjudicating  causes 
actually  brought  for  trial.  In  considering  the  constitu- 
tionality of  a  Federal  law,  it  is  important  to  inquire  whether 
necessarily  the  Federal  Constitution  conveys  to  the  Congress 
authority  for  making  the  law  in  question.  In  considering 
the  constitutionality  of  a  State  law,  it  is  important  to  in- 
quire whether  the  State  constitution  has  prohibited  the 
legislature  from  enacting  the  law  in  question.  The  Federal 
Constitution  is  a  grant  of  powers.  The  State  constitution 
is  a  limitation  of  powers  which,  without  the  limitation,  are 
presumed  to  exist.  This  principle  is  clearly  set  forth  in  the 
decisions  of  the  courts: 

"  It  has  never  been  questioned  that  the  American  legis- 
latures have  the  same  unlimited  power  in  regard  to  legis- 
lation which  resides  in  the  British  Parliament,  except  where 
they  are  restrained  by  written  constitutions.  That  must 
be  conceded  to  be  a  fundamental  principle  in  the  political 
organization  of  the  American  States.  We  could  not  well 
comprehend  how,  upon  principle,  it  could  be  otherwise. 
The  people  must,  of  course,  possess  all  legislative  power 
originally.  They  have  committed  this  in  the  most  general 
and  unlimited  manner  to  the  several  State  legislatures, 
save  only  such  restrictions  as  are  imposed  by  the  Constitu- 
tion of  the  United  States  or  of  the  particular  State  in 
question."  "The  people,  in  framing  the  constitution  [of 
the  State],  committed  to  the  legislature  the  whole  law- 
making power  of  the  State  which  they  did  not  expressly 
or  impliedly  withhold.  Plenary  power  in  the  legislature 
for  all  purposes  of  civil  government  is  the  rule.  Prohibition 
to  exercise  a  particular  power  is  an  exception." 


THE  GOVERNMENT  OF   THE  STATES  291 

Topics. — Restrictions  on  State  constitutions  and  State  laws. — 
Restrictions  on  State  legislatures. 

References. — Cooley,  Constitutional  Limitations,  108;  Hart, 
Actual  Government,  315-319;  Hitchcock,  American  State  Constitu- 
tions, 35;  Miller,  Lectures,  577. 

i6o.  Direct  Legislation  Through  State  Constitutions. — 
In  the  canton  of  Appenzell  in  Switzerland,  the  people  as- 
semble in  a  common  place  of  meeting  to  elect  officers  and 
adopt  laws  for  the  canton  by  direct  vote.  Under  certain 
conditions  the  direct  vote  of  the  people  of  Switzerland  is 
applied  also  to  the  passage  of  federal  laws.  The  federal 
legislature  formulates,  approves  and  proposes  law^s;  and, 
if  it  is  demanded  by  a  sufficient  number  of  voters,  they  are 
then  submitted  to  the  people,  w'ho  vote  on  tliom  in  the 
several  cantons.  This  practice  of  referring  laws  to  the 
people,  to  be  finally  adopted  by  direct  popular  vote,  is 
called  referendum,  a  term  which  may  be  defined  as  the  right 
of  the  people,  by  direct  vote,  to  accept  or  reject  certain  acts 
that  have  been  passed  by  the  regular  legislative  body.  In 
the  formation  of  a  State  constitution  the  practice  is  similar 
to  that  of  the  referendum.  The  draft  of  the  constitution  is 
formulated  by  a  representative  body  called  a  convention 
and  is  then  submitted  to  the  voters  for  adoption. ^  By  in- 
troducing into  tlie  draft  or  by  inserting  into  amendments 
matters  that  properly  belong  to  statutes,  there  is  carried 
out  a  system  of  direct  legislation  by  the  people.  Therefore, 
in  amending  the  constitution  the  practice  is  essentially  that 
of  the  referendum,  since  the  amendment  is  formulated,  dis- 
cussed, and  approved  by  the  legislature  before  it  is  sub- 
mitted to  the  people.  The  State  constitution  sometimes 
provides  that  certain  questions  shall  be  submitted  to  the 
voters  of  the   State   for   final   decision.     In   Minnesota   a 

» See  §157. 


292      THE   GOVERNMENT  OF  THE  UNITED  STATES 

certain  class  of  railway  laws  might  not  take  effect  until 
they  had  been  approved  directly  by  the  voters;  and  in  the 
same  State  "  moneys  belonging  to  the  internal  improvement 
land  fund  shall  never  be  appropriated  for  any  purpose  till 
the  enactment  for  that  purpose  shall  have  been  approved 
by  a  majority  of  the  electors  of  the  State,  voting  at  the 
annual  general  election  following  the  passage  of  the  act." 
This  system  of  direct  legislation  has  certain  merits.  It 
interests  the  people  in  the  questions  presented  to  them  and 
tends  to  give  them  information  on  important  public  matters. 
On  the  other  hand,  it  may  be  said  that  it  detracts  from  the 
authority  of  the  legislature,  weakens  its  sense  of  responsi- 
bility, and  thus  hinders  improvement  in  the  character  of 
that  body. 

Topics. — The  referendum  in  Switzerland. — Similarity  of  method 
in  making  a  State  constitution. — Direct  legislation. — Merits  of  the 
system. — Objections. 

References. — Bryce,  American  Commonwealth,  i,  Chap. 
XXXIX;   ii,  316;   Hart,  Actual  Government,  78-84. 


i6i.  The  People  and  the  Government. — In  the  growth 
of  popular  government  there  has  hitherto  been  observed  a 
tendency  on  the  part  of  the  people  gradually  to  come  nearer 
the  actual  control  of  public  affairs.  This  is  manifested  in 
the  extension  of  the  suffrage,  in  the  demand  that  laws  be- 
fore becoming  valid  shall  be  submitted  to  a  popular  vote, 
and  in  the  increasing  number  of  provisions  that  are  intro- 
duced into  the  more  recent  State  constitutions  and  voted 
on  by  the  people.  A  comparison  of  a  recent  voluminous 
State  constitution  with  the  succinct  Constitution  of  the 
United  States  will  show  to  what  extent  the  State  constitu- 
tion has  been  made  to  embrace  topics  properly  belonging 
to  administrative  law.  In  this  the  voters  manifest  a  wish 
to  limit  the  authority  of  the  legislature  by  introducing  into 


THE  GOVERNMENT  OF  THE  STATES  293 

the  constitution  itself  matters  which,  in  any  proper  separa- 
tion of  functions,  would  be  assigned  to  the  legislature  rather 
than  to  the  direct  vote  of  the  people.  The  people  appear  to 
regard  the  government  which  they  themselves  have  con- 
stituted with  a  suspicion  somewhat  like  that  with  which  the 
people  of  England  once  regarded  the  king;  and  through 
the  modern  State  constitutions  they  have  given  a  more  or 
less  distinct  expression  of  this  sentiment,  and  have  at- 
tempted to  guard  themselves  against  the  encroachments  of 
the  regularly  constituted  authorities. ^ 

Subject  to  the  limitations  contained  in  the  fourteenth 
and  fifteenth  amendments  to  the  Federal  Constitution,  the 
State  fixes  the  condition  of  voting  in  both  national  and 
State  elections.  The  qualifications  for  voters  in  Federal 
elections  are  those  fixed  in  each  of  the  several  States  for 
voting  for  members  of  the  lower  house  of  the  State  legis- 
lature. Voters  in  Federal  elections  in  different  States  have, 
therefore,  not  necessarily  the  same  qualifications;  but  the 
variations  are  insignificant.-  EveryAvhere  the  people  have 
been  endowed  with  a  common  democratic  spirit  which  has 
found  expression  in  State  institutions  that  are  essentially 
uniform.  All  the  States  have  practically  universal  man- 
hood suffrage.  In  eight  States  no  pauper  can  vote;  in 
Rhode  Island  there  is  still  a  property  qualification;  and  four 
States — Delaware,  Massachusetts,  Pennsylvania,  and  Ten- 
nessee— require  the  payment  of  some  State  or  county  tax. 
Massachusetts,  Connecticut,  and  California  have  a  certain 
educational  test— the  ability  to  read  the  Constitution. 
With  regard  to  suffrage,  as  with  regard  to  legislation  by 
popular  vote,  there  are  many  persons  in  the  nation  who  are 
disposed  to  go  to  the  democratic  extreme.  In  the  one  case 
it  is  the  advocacy  of  the  referendum;  in  the  other,  the 
advocacy  of  woman  suffrage. 

»  See  §163.  ^  g^e  §136. 


294      THE   GOVERNMENT   OF  THE   UNITED  STATES 

Topics. — Popular  desire  for  immediate  control  of  the  Govern- 
ment.— Extension  of  suffrage,  referendum,  legislation  in  State 
constitutions. — Suffrage  in  the  States. 

References. — Hart,  Actual  Government,  66-71,  125;  Fiske, 
Civil  Governvient,  173-183;  Bryce,  American  Commonwealth,  i, 
427,  446,  451. 

162.  The  State  Legislature. — The  main  institutions  of 
the  State  and  of  the  Union  are  framed  under  the  influence 
of  a  common  ideal,  and  consequently  have  many  similar 
features.  Each  has  a  chief  executive,  a  body  of  executive 
officers,  a  legislature  of  two  houses,  a  supreme  court,  and 
a  system  of  inferior  courts.  Three  States — Pennsylvania, 
Georgia,  and  Vermont — had,  for  a  few  years,  legislatures  of 
one  house  each.  Georgia  adopted  the  two-house  system  in 
1789,  Pennsylvania  in  1790,  and  Vermont  in  1836.  The 
members  of  the  two  houses  are  chosen  by  popular  vote,  each 
in  a  senatorial  or  house  district,  as  the  case  may  be.  A 
senatorial  district  is  larger  than  a  house  district,  and  the 
senate  is  a  correspondingly  smaller  body  than  the  house. 
The  senators  generally  hold  for  longer  terms  than  the  as- 
semblymen or  representatives.  In  half  of  the  States  they 
hold  for  four  years,  in  about  a  quarter  of  the  States  they 
hold  for  two  years,  and  in  the  rest  for  one  or  three  years. 
The  State  senate,  like  the  United  States  Senate,  is  only  par- 
tially renewed  at  anyone  time;  while  the  lower  house,  like 
the  Federal  House  of  Representatives,  is  wholly  renewed 
at  the  end  of  each  period  for  which  the  members  are  elected. 

The  most  conspicuous  restriction  on  the  election  of 
members  to  either  the  State  or  the  national  Legislature  is 
that  they  shall  reside  in  the  districts  for  which  they  are 
severally  elected.  This  restriction,  whether  by  law  or  by 
custom,  has  been  seriously  criticised  as  making  the  area  of 
choice  smaller  and  consequently  causing  inferior  men  to  be 
chosen. 


THE  GOVERNMENT  OF  THE  STATES  295 

What  has  been  said  about  the  method  pursued  in  Con- 
gress in  making  laws  indicates  in  a  general  way  the  process 
in  the  State  legislatures.  Writing  the  bill  in  the  proper 
form  is  the  first  step.  When  written  it  must  contain  only 
one  subject,  and  this  subject  must  be  indicated  in  the  title. 
The  bill  is  introduced  by  a  member,  and  after  it  has  been 
read  either  in  full  or  by  title  it  is  referred  to  a  committee. 
The  committee  considers  the  bill  carefully,  listens  to  ar- 
guments in  favor  of  it  as  well  as  to  arguments  against  it, 
and  finally  either  reports  it  to  the  house  to  which  the  mem- 
bers of  the  committee  belong,  or  allow\s  it  to  remain  with  the 
committee.  In  the  house  to  which  it  is  reported  it  is  dis- 
cussed and  voted  on.  If  the  required  majority  vote  for  it, 
the  presiding  officer  signs  it,  and  it  is  then  sent  to  the  other 
house.  There  it  is  treated  in  a  similar  manner;  and,  if 
passed,  it  is  sent  to  the  governor.  The  governor  has  a 
definite  period,  fixed  by  law,  of  ten  days  or  more  in  which  to 
decide  whether  he  will  sign  it  or  not.  There  are  several 
ways  by  which  the  bill  may  now  become  a  law:  (1)  The  gov- 
ernor may  sign  it;  (2)  he  may  veto  it,  and  it  may  be  passed 
over  his  veto  by  the  required  majority  of  each  house;  (3)  he 
may  neglect  to  sign  it  or  veto  it,  during  the  period  allowed 
him  to  consider  it,  when  it  becomes  a  law  without  further 
action. 

Topics. — Similar  features  in  State  and  national  institutions. — 
Terms  of  State  senators. — Residence  in  district  represented. — Proc- 
ess of  making  laws  in  a  State. 

References. — Bryee,  American  Commonuraltli,  i,  95,  9S,  222, 
418,  420,  4G8-470;  Hart,  Actual  Government,  12S-139;  Inske,  Civil 
Government,  170-188,  255-258. 

163.  Restrictions  on  State  Legislation. — While  the  gov- 
ernor has  no  right  to  dissolve  or  adjourn  the  legislature, 
in  all  but  four  States  ho  has  the  right  to  veto.  This  right, 
however,  like  that  exercised  by  the  President,  is  only  the 


296      THE   GOVERNMENT   OF  THE   UNITED  STATES 

right  of  a  limited  veto.  In  some  States  an  act  may  be  passed 
over  the  governor's  veto  by  a  majority  of  three-fifths  of  each 
house,  and  in  other  States  by  a  majority  of  two-thirds  of 
each  house,  and  in  still  others  by  a  simple  majority  of  all 
the  members  elected.  Against  the  possible  unwisdom  or 
misdirected  self-interest  of  the  many  members  of  the  legis- 
lature, there  is  a  disposition  on  the  part  of  the  people  to 
rely  on  the  wisdom,  impartiality,  and  comprehensive  view 
of  the  governor.  On  occasions  when  the  people  find  their 
well-being  threatened,  they  often  turn  instinctively  to  some 
one  person,  hoping  to  find  him  willing  and  able  to  be  their 
champion.  Modern  democracy  has  not  entirely  obUterated 
the  disposition  of  the  members  of  the  tribe  to  look  to  the 
tribal  chief  for  their  protection. 

A  second  form  of  restriction  appears  in  the  exclusion  of 
certain  specified  subjects  from  legislative  competence.  The 
legislatures  are  prohibited  by  the  State  constitutions  in 
their  more  recent  forms  from  making  laws  of  local  or  spe- 
cial application  on  a  large  and  increasing  number  of 
subjects. 

A  third  form  of  restriction  relates  to  legislative  pro- 
cedure. This  restriction  makes  provision  concerning  the 
majorities  necessary  to  pass  certain  bills — whether  the 
majority  required  in  any  given  case  shall  be  a  majority  of 
the  members  present,  a  majority  of  all  elected,  or  a  pre- 
scribed part  of  this  number.  It  makes  stipulations  con- 
cerning the  method  of  taking  and  recording  votes.  It 
specifies  the  intervals  required  to  elapse  after  each  reading 
of  a  bill  before  its  last  reading  and  a  final  vote  on  it.  It 
prescribes  that  a  bill  shall  include  only  one  subject,  and  that 
this  subject  shall  be  expressed  in  the  title. 

A  fourth  form  of  restriction  is  found  in  the  division  of 
the  legislature  into  two  houses.  If  a  bad  law  passes  one 
house  without  becoming  sufficiently  well  known  to  provoke 
popular  opposition,  it  is  expected  that  the  delay  necessary 


THE   GOVERNMENT   OF  THE   STATES  297 

before  it  is  brought  to  vote  in  the  other  house  will  furnish 
an  opportunity  to  rouse  a  sentiment  against  it,  either  by- 
discussion  among  the  people  or  by  debate  in  the  house 
itself. 

Another  and  fifth  restriction  on  legislation  consists  in 
limiting  the  number  of  days  on  which  the  legislature  is 
authorized  to  sit  or  for  which  the  members  may  receive  pay. 
Making  the  sessions  biennial  instead  of  annual  is  a  move- 
ment toward  the  same  end.  Only  six  States  adhere  to  the 
earlier  general  practice  of  annual  sessions. 

Topics. — Restrictions  of  State  legislation:  1.  Governor's  veto; 
2.  Constitutional  exclusion  of  certain  subjects  from  legislative 
power;  3.  Required  majorities  in  certain  cases,  specified  inter- 
vals between  readings  of  bills,  limitation  of  a  bill  to  one  subject; 
4.  Existence  of  two  houses;  5.  Limitation  of  time  of  sessions. 

Reference. — Bryce,  American  Commonwealth,  i,  427,  470. 

164.  State  Taxation. — Generally  speaking,  the  Federal 
Government  raises  its  revenues  by  indirect  taxation,  while 
the  State  relies  almost  entirely  on  direct  taxation.  The 
Federal  Government  derives  the  bulk  of  its  funds  from 
customs  duties;  while  the  State,  forbidden  to  impose  cus- 
toms duties,  derives  the  main  part  of  its  revenues  from 
taxes  levied  on  real  and  personal  property.  Local  officials, 
called  assessors  or  appraisers,  acting  under  the  direction  of 
the  State  law,  make  lists  of  all  taxable  property  within  their 
several  districts  and  fix  a  valuation  for  each  piece  of  such 
property.  If  a  high  value  is  fixed,  the  people  of  the  town 
or  the  county  arc  obliged  to  pay  a  proportionately  large 
part  of  the  taxes.  The  assessor,  who  is  a  locally  elected 
officer,  is,  therefore,  moved  by  various  considerations  to 
make  the  valuation  low;  but  in  order  that  the  valuation 
may  be  made  sufficiently  high  and  uniform  throughout 
the  State,  a  board  of  equalization  is  appointed  with  power 

to  raise  or  lower  the  valuation  fixed  by  the  local  assessors. 
20 


298      THE  GOVERNMENT  OF  THE  UNITED  STATES 

County  boards  of  equalization  also  are  created,  whose  duty 
it  is  to  equalize  the  valuations  made  by  the  local  assessors 
in  the  several  towns  of  their  respective  counties;  but  the 
most  efficient  board  of  equalization  does  not  prevent  the 
existence  of  great  inequalities  in  the  burdens  of  taxation, 
owing  to  the  ease  of  discovering  certain  kinds  of  property 
and  the  difficulty  of  discovering  other  kinds.  It  is  easy  to 
make  a  list  of  all  the  houses  and  lands  in  the  town  or  the 
State,  but  it  is  very  difficult  to  make  a  list  of  all  the  notes 
and  bonds  that  are  owned  in  the  town  or  the  State;  and  for 
this  reason  two  persons  owning  equal  amounts  of  property 
of  different  kinds  may  pay  very  unequal  amounts  of  taxes. 
Taxes  are  paid  on  all  property  in  lands  and  buildings  be- 
cause they  can  be  easily  found  and  assessed,  but  taxes  are 
paid  on  only  a  part  of  personal  property  because  it  can 
be  readily  concealed.  Besides  the  property  that  escapes 
taxation  because  of  its  fraudulent  concealment  by  the  own- 
ers, there  is  also  a  large  amount  on  which  no  taxes  are 
paid  because  it  is  by  law  exempted.  This  amount  varies 
in  accordance  with  the  exemption  laws  of  the  several  States. 
California  exempts  from  taxation  very  little  property  except 
such  as  belongs  to  the  Government,  and  at  one  time  em- 
braced in  the  list  of  taxable  property  even  churches  and 
other  institutions  not  belonging  to  the  State;  while  many 
other  States  have  exempted  educational,  charitable,  sci- 
entific, literary,  and  agricultural  institutions,  as  well  as 
churches  and  libraries  not  owned  by  the  State. ^ 

'  The  constitution  of  California,  Article  13,  Section  9,  contains  the 
foliowing  statement  concerning  the  boards  of  equalization:  "A  State 
board  of  equalization,  consisting  of  one  member  from  each  congressional 
district  in  this  State,  as  the  same  existed  in  eighteen  hundred  and 
seventy-nine,  shall  be  elected  by  the  qualified  electors  of  their  respective 
districts,  at  the  general  election  to  be  held  in  the  year  one  thousand 
eight  hundred  and  eighty-six,  and  at  each  gubernatorial  election  there- 
after, whose  term  of  office  shall  be  for  four  years;  whose  duty  it  shall 
be  to  equalize  the  valuation  of  the  taxable  property  in  the  several 


THE   GOVERNMENT   OF  THE  STATES  299 

Topics. — Source  of  State  revenue. — Le\ying  taxes.- -The  as- 
sessor.— Board  of  efjualization. — Inequalities  in  the  burdens  of 
taxation. — Property  escaping  taxation. — Kinds  of  property  exempt. 

References. — Bryce,  American  Commonwealth,  i,  490-504;  ii, 
393;  Cooley,  Constitutional  Law,  GO;  Hart,  Actual  Government,  408, 
Chap.  XXII. 

165.  The  Governor. — The  executive  head  of  the  State  is 
called  the  governor.  His  office  has  been  continued  down 
to  the  present  from  the  colonial  period  of  our  history,  and  it 
was  the  model  on  which  the  makers  of  the  Federal  Constitu- 
tion formed  the  office  of  President.  He  is  elected  by  the 
voters  who  elect  the  members  of  the  State  legislature,  and 
the  period  for  which  he  is  elected  varies  in  the  different 
States  from  one  to  four  years.  This  period  is  either  two  or 
four  years  in  a  large  majority  of  the  States. 

While  the  President  is  surrounded  by  a  body  of  advisers 
of  his  own  appointment,  the   governor  has  no  cabinet  or 


counties  of  the  State  for  the  purposes  of  taxation.  The  controller  of  the 
State  shall  be  ex  officio  a  member  of  the  board.  The  boards  of  super- 
visors of  the  several  counties  of  the  State  shall  constitute  boards  of 
equalization  for  their  respective  counties,  whose  duty  it  shall  be  to 
equalize  the  valuation  of  the  taxable  property  in  the  county  for  the 
purpose  of  taxation ;  provided,  s\\q\\  State  and  county  boards  of  equali- 
zation are  hereby  authorized  and  empowered,  under  such  rules  of  notice 
as  the  county  boards  may  prescribe  as  to  the  action  of  the  State  board, 
to  increase  or  lower  the  entire  assessment  roll,  or  any  assessment  con- 
tained therein  so  as  to  equalize  the  assessment  of  the  property  contained 
in  said  assessment  roll,  and  make  the  assessment  conform  to  the  true 
value  in  money  of  the  property  contained  in  said  roll;  'provided,  that 
no  board  of  equalization  shall  raise  any  mortgage,  deed  of  trust,  con- 
tract, or  other  obligation  by  which  a  debt  is  secured,  money,  or  solvent 
credits,  above  its  face  value.  The  present  State  board  of  equalization 
shall  continue  in  office  until  their  successors,  as  herein  provided  for, 
shall  be  elected  and  shall  qualify.  The  legislature  shall  have  power  to 
redistrict  the  State  into  four  districts,  as  nearly  equal  in  population  as 
practicable,  and  to  provide  for  the  election  of  members  of  said  board 
of  equalization." 


300      THE   GOVERNMENT   OF  THE   UNITED   STATES 

advisory  council.  The  executive  council  which  existed  in 
each  of  the  original  States  except  South  Carolina  has  dis- 
appeared in  all  eases  except  Massachusetts,  Maine,  and 
North  Carolina.  Although  the  governor  has  no  council  or 
cabinet  like  that  of  the  President,  there  are  usually  several 
minor  officers  who  have  part  in  the  general  administration 
of  the  State.  They  are  generally  elected,  and  they  are  not 
responsible  to  the  governor.  These  officers  are  not  the 
same  in  all  of  the  States.  Some  of  the  most  prominent  are 
a  lieutenant  governor,  a  secretary  of  State,  a  State  auditor, 
a  State  treasurer,  an  attorney-general,  a  State  superin- 
tendent of  public  instruction,  and  an  officer  or  board  of 
officers  in  charge  of  public  works.  The  office  of  lieutenant 
governor,  with  its  limited  functions,  suggests  the  office  of 
the  national  Vice-President.  In  most  of  the  States  he  is 
ex  officio  the  presiding  officer  of  the  senate.  He  succeeds 
to  the  governorship  in  case  of  the  death  or  disability  of  the 
governor. 

The  governor's  activity  falls  within  the  limited  sphere 
of  a  subordinate  political  organization,  and  is,  therefore, 
necessarily  limited.  His  main  function  is  to  provide  for 
the  faithful  administration  of  the  law.  He  may  pardon 
convicted  criminals,  except  such  as  have  been  convicted 
on  impeachment  or  for  treason.  He  commands  the  State 
militia  and  has  authority  to  appoint  a  limited  number  of 
State  officials.  He  exercises  in  legislation  a  limited  veto, 
which  in  certain  cases  may  be  overridden  by  the  legislature. 

Topics.— The  office  of  governor.— Term  of  office.— Minor 
officers;  lieutenant  governor. — Duties  of  governor. 

References. — Bryce,  American  Commonwealth,  i,  222,  460- 
479,  508,  527,  720;  ii,  112;  Hart,  Actual  Government,  1SQ-U6; 
Fiske,  Civil  Government,  170-179. 

i66.  The  State  Judiciary.— The  principal  State  courts 
may  be  grouped  in  three  classes:   In  the  first  class  are  the 


THE   GOVERNMENT  OF  THE  STATES  301 

supreme  courts  or  courts  of  appeal  in  the  States;  in  the 
second  class,  the  superior  courts  of  record;  in  the  third  class, 
the  various  local  courts.  Most  of  the  original  States  had 
superior  chancery  courts.  These  were  later  abolished  in 
many  States,  and  cases  in  equity  were  referred  to  the 
ordinary  law  courts.^  The  State  courts  exercise  final  juris- 
diction except  in  cases  for  which  legal  provision  has  been 
made  for  appeal  to  the  Supreme  Court  of  the  United  States. 
The  reported  decisions  of  a  court  of  record  in  any  State  are 
received  in  the  other  States  and  considered,  Hke  the  reports 
of  the  English  courts,  as  indicating  what  the  law  is  on  the 
subject  treated;  but  the  State  law  reports  are  not  all  re- 
garded as  equally  authoritative.  The  decisions  of  a  weak 
court  offer  only  imperfect  evidence  of  the  law.  This  con- 
stant reference  in  one  State  to  the  decisions  rendered  in 
other  States  tends  to  preserve  the  harmony  and  uniformity 
of  the  laws  enforced  throughout  the  Union. 

A  conspicuous  sign  of  the  growth  of  democracy  in  the 
United  States  before  the  Civil  War  was  the  change  made  in 
the  method  of  appointing  State  judges.  In  eleven  of  the 
thirteen  colonies  they  were  appointed  by  the  governor,  Ijut 
in  Connecticut  and  Ehode  Island  they  were  elected  by  the 
legislature.  Under  the  first  State  constitutions  the  judges 
of  four  States,  in  addition  to  Connecticut  and  Rhode  Island, 
were  elected  by  the  legislature.  In  one  State,  Georgia,  they 
were  elected  by  the  people.  During  the  fifty  years  prior  to' 
1860,  American  society  became  more  democratic.  Several 
States  took  the  appointment  of  the  judges  from  the  govern- 
ors or  the  legislatures  and  caused  them  to  be  elected.  The 
new  States  organized  in  the  West  adopted  the  more  demo- 
cratic method  of  selecting  judges.  At  present,  in  five  States 
they  are  elected  by  the  legislature;  in  eight  appointed  by 
the  governor;  and  in  the  other  States  elected  by  the  people. 

»  See  Equity,  §  134. 


302      THE   GOVERNMENT   OF  THE  UNITED  STATES 

The  original  States  have  generally  been  conservative  in  this 
matter,  holding  to  the  method  of  appointment  by  the 
governor;  but  the  new  States  have  caused  their  judges  to 
be  elected  by  popular  vote.  Under  the  influences  that  have 
produced  these  results,  a  change  in  the  judges'  tenure  of 
office  has  been  effected.  In  the  early  history  of  most  of  the 
States,  the  judges  were  appointed  for  life;  but  the  life  tenure 
is  retained  in  only  four  States.  In  all  the  other  States  the 
judges  are  elected  or  appointed  for  a  definite  term  of  years. 
The  average  term  is  not  more  than  eight  or  ten  years.  The 
two  conspicuous  results  of  the  growth  of  the  democratic 
spirit  with  respect  to  the  State  judiciary  are  the  selection 
of  the  judges  by  popular  vote  and  the  establishment  of 
short  terms  of  service. 

It  is  affirmed  that  the  direct  dependence  of  the  judges 
on  the  favor  of  the  voters  influences  their  judgments  and 
tends  to  defeat  the  ends  of  justice.     The  full  mischievous 
effect  of  this  dependence  is  prevented:  (1)  By  the  presence 
of  the  Federal  courts  in  each  State,  whose  judges,  appointed 
for  life,  are  usually  independent  and  incorruptible  officials; 
(2)  by  a  strong  public  opinion  which  demands  that  honesty 
and  impartiality  shall  be  maintained  in  the  courts  even 
though  other  branches  of  the  Government  should  fall  below 
the  proper  standard;  (3)  by  the  influence  of  the  bar,  which 
often  protests  against  bad  nominees  and  in  general  exercises 
a  conservative  and  sobering  influence  on  the  radicalism  of 
the  community.     In  spite  of  these  restraining  influences, 
the  elective  system  does  not,  speaking  generally,  secure  for 
the  State  courts  such  judges  as  an  enlightened  common- 
wealth ought  to  have.     They  are,  taken  as  a  body,  inferior 
both  in  learning  and  character  to  the  appointed  Federal 
judges.     Because  we  approve  of  the  republican  form  of 
government,  it  does  not  follow  that  we  are  obliged  to  apply 
the  principle  of  election  without  regard  to  results.     The 
makers  of  the  Federal  Constitution  were  believers  in  re- 


THE   GOVERNMENT   OF  THE  STATES  303 

publican  government;  but  they  carefully  provided  that  in 
the  system  they  created  the  judges  should  be  appointed  and 
not  elected. 

Topics. — Three  classes  of  State  courts. — Final  jurisdiction  of 
State  coui'ts. — Apj^ointment  of  State  judges. — Term  of  office. — 
Forces  tending  to  sustain  the  high  character  of  the  courts. 

References. — Bryce,  American  Comvionwealth,  i,  32,  430, 
480-485;  ii,  495-505;  Hart,  Actual  Government,  152-165;  Fiske, 
Civil  Government,  185-188. 

167.  The  Grand  Jury. — The  satisfactory  working  of  the 
judiciary  is  dependent  not  alone  on  wise  and  upright  judges. 
The  other  institutions  of  the  court  must  be  maintained  free 
from  corruption  and  be  moved  to  effective  cooperation. 
The  most  important  of  these  institutions  are  the  grand 
jury  and  the  petit  jury.  These,  the  English  colonists 
carried  to  America,  for  they  regarded  them  as  essential  in 
making  permanent  the  liberty  they  sought  to  establish. 

The  grand  jury  consists  of  not  less  than  twelve  nor  more 
than  twenty-three  persons.  The  members  are  taken,  as 
prescribed  by  law,  from  the  citizens  of  the  community  in 
which  the  body  is  organized.  They  are  sworn  and  directed 
by  the  judges  to  inquire  into  and  make  presentment  of  all 
offenses  committed  within  their  district.  The  presentment 
is  made  only  when  at  least  twelve  members  of  the  grand 
jury  are  in  favor  of  it,  and  this  presentment  may  be  made 
the  basis  of  an  indictment  on  which  the  person  accused  may 
be  brought  to  trial.  The  fact  that  the  members  of  the  grand 
jury,  who  examine  the  grounds  of  the  accusation,  belong 
to  the  same  community  as  the  accused  person,  is  regarded 
as  security  against  unjust  prosecutions.  When  the  grand 
jury  has  examined  the  formal  accusation  or  indictment 
against  a  person,  it  determines  whether  the  charges  are  of 
such  a  nature  as  to  warrant  the  State  in  proceeding  with 
the  trial.     In  case  the  indictment  is  found  to  be  "a  true 


304      THE   GOVERNMENT   OF  THE  UNITED  STATES 

bill,"  the  prisoner  is  brought  to  trial;   otherwise  he  is  re- 
leased. 

Topics. — Cooperative  institutions  of  the  court. — Description  of 
grand  jury. — Functions. — Procedure. — A  true  bill. 

References. — Miller,  Lectures,  490,  506,  517;  Cooley,  Consti- 
tutional Law,  290. 

i68.  Trial  by  Jury. — Trial  by  jury  "in  criminal  cases 
has  been  looked  upon  as  a  necessary  part  of  the  liberties  of 
the  people,  and  a  sentiment  attaches  to  it  which  will  scarcely 
suffer  its  value  to  be  questioned.  Every  State  constitution 
preserves  it  for  suits  in  the  State  courts,  and  every  new  or 
revised  constitution  repeats  a  guaranty  of  it.  Even  the 
common-law  requirement  of  unanimity  in  the  verdict,  which 
is  of  more  than  doubtful  value,  is  retained  without  inquiry 
or  question,  because  it  has  existed  from  time  immemorial."  ^ 
In  the  fifth  and  seventh  amendments  to  the  Constitution, 
adopted  in  1791,  it  was  provided  that  "no  persons  shall  be 
held  for  a  capital,  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in 
actual  service  in  time  of  war  or  public  danger";  and  that 
"in  suit  at  common  law,  where  the  value  in  controversy 
shall  exceed  $20,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  reexamined  in 
any  court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law." 

A  person  brought  to  trial  is  entitled  under  the  law  to 
certain  privileges.  When  the  jury  has  rendered  a  verdict 
concerning  him,  he  is  entitled  to  have  it  treated  as  final; 
whether  he  has  been  acquitted  or  condemned,  he  may  not 
be  tried  again  for  the  same  offense.  The  jury  may  fail  to 
come  to  an  agreement  either  to  convict  or  to  acquit,  or  it 

*  Cooley,  Constitutional  Law,  238. 


THE   GOVERXMEXT   OF   THE   STATES  305 

may  be  discharged  before  the  completion  of  its  work,  or 
the  judgment  of  the  court  may  be  withheld  even  after  a 
verdict  by  the  jury  has  been  rendered — in  any  one  of  these 
cases  a  new  trial  may  be  had.  In  any  trial,  moreover,  the 
accused  may  not  be  compelled  to  testify  against  himself; 
and  without  due  process  of  law  he  may  not  be  deprived  of 
life,  liberty,  or  property. 

As  maintained  in  the  United  States,  the  jury  system  is 
generally  conformed  to  the  following  conditions:  (1)  The 
jury  must  be  composed  of  twelve  persons;  (2)  the  jury  must 
be  drawn  from  the  district  or  county  in  which  the  trial  is 
held,  and  from  the  whole  number  of  qualified  citizens  nOt 
expressly  exempted  by  statute;  {'.])  the  verdict  of  the  jury 
must  be  unanimous;    (-4)  the  jury  must  be  impartial. 

While  these  are  the  normal  conditions  under  which  the 
jury  exists,  some  of  them  are  modified  under  certain  circum- 
stances. In  certain  cases  in  some  of  the  States  a  jury  may 
be  composed  of  less  than  twelve  persons.  The  requirement 
of  unanimity  is  strictly  adhered  to  in  criminal  cases,  and 
generally  also  in  civil  cases;  but  in  civil  cases  in  California 
and  Louisiana  a  verdict  by  two-thirds  of  the  jury  may  be 
recorded. 

Topics. — American  opinion  of  trial  by  jury. — Const  it  utioiial 
statement. — Verdict. — Description  of  jury  system. — Unanimity. 

References. — Fiske,  Civil  Govcrnmenl,  186;  Hart,  Actual 
Government,  22-32,  150-100;  Willou^liby,  Rights  and  Duties,  95- 
108;  Miller,  Lectures,  319,  301,  490,  499. 

169.  The  Judgment  of  One's  Peers. — The  statement  that 
one  must  be  subject  to  the  "legal  judgment  of  his  peers" 
has  no  important  significance  in  the  United  States,  since 
the  law  here  recognizes  no  distinct  social  classes.  In 
England,  where  strongly  marked  classes  existed,  if  one  were 
tried  by  a  jury  composed  of  members  of  the  class  to  which 
he  belonged,  it  was  supposed  that  he  would  receive  an  im- 


306      THE   GOVERNMENT   OF   THE   UNITED   STATES 

partial  verdict;  if  his  jury  was  composed  of  members  of 
other  classes,  he  might  expect  to  receive  a  verdict  more  or 
less  modified  by  class  prejudice  or  class  antagonism.  There- 
fore, in  order  to  secure  for  the  accused  as  just  or  as  favor- 
able a  judgment  as  possible,  English  law  provided  for  trial 
by  a  jury  of  one's  peers,  or  members  of  the  class  to  which 
one  belonged.  It  was  supposed  that  the  most  important 
influence  that  might  interfere  with  the  impartiahty  of  a 
jury  was  such  as  might  arise  from  the  differences  of  social 
classes.  The  absence  of  legally  recognized  classes  in  the 
United  States  has  taken  away  all  importance  from  this 
special  provision.  The  purpose  of  the  law  is  the  same  in 
the  United  States  as  in  England, — namely,  to  secure  an  im- 
partial verdict, — but  there  is  here  no  recognized  single  cause 
specially  interfering  with  the  impartiality  of  a  jury. 

Topics. — Phrase  of  little  significance  in  the  United  States. — 
Original  purpose. 

FOR   ADVANCED   STUDY 

The  State  Qovernment. — Goodnow,  Comparative  Adminis- 
trative Law,  i,  Books  II,  III;  Johns  Hopkins  University,  Studies,  iii, 
Nos.  9,  10;  iv,  No.  5;  Cooley,  Constitutional  Laio,  Chaps.  X,  XI; 
Coolcy,  Constitutional  Limitations;  Bryee,  American  Common- 
wealth, i.  Chaps.  XL-XLVI;  Baldwin,  Modern  Political  Institu- 
tions, Chaps.  Ill,  IV,  XI;  Evans,  Handbook  of  American  Cover n- 
mer.t;  H.  von  Hoist,  Constitutional  Law,  §§  79-90. 

State  Legislatures. — American  Academy  of  Political  Science, 
Annals,  i,  26-42;  vi,  254-267;  Political  Science  Quarterly,  v,  224- 
258;  Bryce,  American  Commonwealth,  i,  Chaps.  XL,  XLIV,  XLV; 
Roosevelt,  American  Ideals,  No.  5;  Schouler,  Constitutional  Studies. 

State  Legislation. — Eaton,  Government  of  Municipalities, 
Chap.  X;  American  Bar  Association,  Reports,  1884:  275-301,  1892: 
245-311;  American  Academy  of  Political  Science,  Annals,  vii, 
411-425;  ix,  231-245;  xi,  174-190;  xiii,  212-229;  xv,  160-170; 
xvii,  244-259. 


THE   GOVERNMENT   OF  THE   STATES  307 

The  State  Executive  Department.— Coolcy,  Conditulional 
Limitations,  218-222;  Goodnow,  Comparative  Administrative  Law, 
i,  74-82,  102-106,  134-137,  146-lGl;  ii,  1-100;  Evans,  Handbooks 
of  American  Government;  Bryce,  American  Commonwealth,  i.  Chap. 
XLI;  Columbia  University,  Studies,  ix,  Xo.  3;  Political  Science 
Quarterly,  15:  50-74;  American  Academy  of  Political  Science, 
Annals,  iv,  883-903;  xvii,  74-91;  xviii,  434-445;  Roosevelt,  Ameri- 
can Ideals,  No.  8. 

The  State  Courts. — Cooley  ct  al..  Constitutional  History, 
Chap.  V;  A.  L.  Lowell,  Essays,  No.  3;  Bryce,  American  Comynon- 
wealth  (revised  edition,  1895),  i.  Chap.  XLII;  ii.  Chaps.  CI,  CII; 
Baldwin,  Modern  Political  Institutions  (1898),  Chap.  VII;  Dillon, 
Municipal  Corporations  (fourth  edition,  1890),  ii,  Chaps.  XX- 
XXIII;  I)c  Toccjuevillc,  Democracy  in  America,  i.  Chaps.  VI,  VII. 

The  Referendum. — Bryce,  American  Commonwealth,  i.  Chap. 
XXXIX;  Deploige,  Referendum  in  Switzerland;  Oberholzer,  Refer- 
endum in  America,  Chaps.  VII-XVI. 

The  Amendment  of  Constitutions. — Borgeaud,  Adoption 
and  Amendment  of  Constitutions,  Parts  I,  III;  Bryce,  American  Com- 
monwealth, i,  Chaps.  XXXII,  XXXVII,  XXXVIII;  Ames,  Amend- 
ments to  the  Constitution  (American  Historical  Association,  Papers, 
V,  253-263);  Burgess,  Political  Science,  i,  137-154;  Oberholzer, 
Referendum  in  America,  Chaps.  III-VI. 

The   Sins  and   Shortcomings  of  State  Legislatures. — 

Atlantic  Monthly,  79:  366-377,  80:  42-53;  North  American  Review, 
165:  240-246,  168:  84-91. 

Road=Making  in  States.— Fori/ /»,  26:  668-672;  Popular 
Science  Monthly,  51:  73-82;  Smith,  Training  for  Citizenship,  §§  92, 
94;  Encyclopaedia  Americana,  xiii,  under  Roads  and  Highways. 

State  Railway  Commissions. — Dixon,  State  Railroad  Con- 
trol, 201-211 ;  Hendrick,  Railway  Control  by  Commissioners,  92-119; 
Hadley,  Railroad  Transportation,  134-145. 


CHAPTER  XII 

LOCAL  GOVERNMENT  IN  THE  UNITED 

STATES 

170.  The  Government  of  New  England  Towns. — The 
local  governments  of  the  United  States  comprehend  the 
town,  the  city,  and  the  county  governments.  The  most 
noteworthy  of  these  is  the  town  government  of  New 
England,  w^hich  has  come  down  to  us  from  colonial  times. 
Its  most  distinctive  characteristic  is  its  democracy.  It  is 
a  government  by  the  people.  The  territory  of  the  town  is 
a  few  square  miles  in  extent,  with  clearly  determined  but 
irregular  boundaries.  The  inhabitants  live  in  part  on  the 
farms  into  which  the  territory  is  divided  and  in  part  in  the 
village  or  villages  that  have  grown  up  around  the  church  or 
some  place  favorable  for  manufacturing.  The  voters  come 
together  at  least  once  a  year  to  make  laws  for  the  town,  to 
elect  the  officers,  to  vote  the  necessary  taxation,  and  to  make 
the  appropriations  needed  for  schools,  roads,'and  other  local 
purposes.  The  meeting  is  presided  over  by  the  chairman 
or  moderator,  and  each  voter  enjoys  the  same  right  as  every 
other  voter  to  introduce  measures  and  to  take  part  in  the 
debate.  The  town  meeting  is  held  in  the  church,  or  in  the 
townhall,  if  there  is  one,  or  in  a  schoolhouse.  The  principal 
executive  officers  elected  at  the  town  meeting  are  called  the 
selectmen.  There  are  usually  three,  five,  or  seven  in  a 
town;  and  there  may  be  even  a  larger  number.  The  num- 
ber in  any  given  case  depends  on  the  population  and  the 
308 


LOCAL   GOVERNMENT   IN   THE   UNITED   STATES     309 

importance  of  the  town.  They  manage  the  pubUc  business 
under  directions  contained  in  the  laws  or  resolutions  of 
the  town  meeting.  There  is  also  a  town  clerk.  He  acts  as 
secretary  of  the  town  meeting  and  keeps  the  town  records. 
Other  officers  are  a  treasurer,  assessors  who  make  a  valuation 
of  the  property  for  the  purpose  of  taxation,  a  collector,  who 
collects  taxes,  and  several  minor  officers  such  as  cemetery 
trustees,  library  trustees,  and  members  of  school  committees. 

The  appointment  of  minor  officers  and  employees,  and 
the  details  of  administration  must  be  left  to  a  single  per- 
son or  to  a  small  body  of  persons.  Thus  the  selectmen,  in 
the  intervals  between  the  town  meetings,  are  required  to 
perform  nearh'  all  of  the  functions  of  the  town  meeting 
itself.  The  most  important  limitations  on  their  activity 
are  that  they  may  not  appoint  the  higher  officers,  nor  make 
laws  except  under  special  authorization  of  the  body  that 
elected  them.  They  summon  the  town  meeting;  they  man- 
age the  financial  affairs  of  the  town;  they  establish  rules 
relating  to  the  admission  to  the  town  of  new  inhabitants; 
they  have  charge  of  the  common  lands;  they  control  the 
laying  out  and  improvement  of  the  roads;  they  fix  bounda- 
ries and  settle  controversies  relating  to  them;  they  have 
general  control  over  public  institutions  and  public  means  of 
communication;  and  in  some  instances  they  exercise  a  cen- 
sorship over  morals. 

The  town  was  formerly  the  fundamental  political  or- 
ganization, and  had  a  large  part  in  the  State  government; 
and  in  some  States  at  present  each  town,  however  small, 
sends  at  least  one  representative  to  the  State  legislature. 
Where  every  town  selects  one  or  two  representatives  from 
its  inhabitants,  we  have  an  extreme  case  of  small  district 
representation,  mth  the  inevitable  result  of  a  numerous 
legislature  composed  principally  of  ordinary  men  from  the 
small  towns.  As  long  as  New  England  continued  to  be  oc- 
cupied almost  exclusively  by  the  descendants  of  the  origi- 


310      THE   GOVERNMENT   OF   THE   UNITED   STATES 

nal  inhabitants,  it  was  able  to  maintain  the  reputation  of 
its  ancient  democracy.  But  the  decay  of  many  of  the 
towns  and  the  coming  of  immigrants  witliout  poUtical 
experience  or  Icnowledge  of  New  England  traditions  has 
brought  into  influence  a  population  not  fitted  to  the  insti- 
tutions. 

Topics. — The  New  England  town. — The  town  meeting. — 
Officers  of  the  town. — Reason  for  appointing  selectmen  in  a  demo- 
cratic town. — Restrictions  on  their  power. — Their  functions. — 
Representation  of  towns  in  the  State  legislatures. — Disadvantages 
of  the  old  system. 

References. — Bryce,  AmaHcan  Commonwealth,  i,  5G1,  565, 
567,  572,  576,  580,  583,  592,  631;  ii,  246;  Hart,  Actual  Government, 
170-178;  Fiske,  Civil  Government,  Chap.  II;  Ford,  American  Citi- 
zen's Manual,  Part  I,  53-61;  Bryce,  American  Commonwealth,  i, 
567;  Fiske,  Civil  Government,  20-38,  79;  Hart,  Actual  Government, 
171,  172. 

171.  Phases  of  the  History  of  the  Town. — The  town  as 
it  appears  in  the  United  States  has  as  its  historical  ante- 
cedent the  clan,  the  mark,  or  the  old  English  town  organiza- 
tion. In  the  old  English  town  there  was  a  tungemot,  or 
town  meeting,  which  exercised  in  the  management  of  local 
affairs  essentially  the  same  powers  as  the  later  town  meeting 
of  New  England.  The  town  had  also  in  England,  through 
representatives  in  the  assemblies  of  the  hundreds  and  the 
shires,  part  in  the  transaction  of  business  in  which  several 
towns  were  interested.  This  practice  furnished  an  early 
instance  of  political  representation,  which  has  become  the 
most  vital  principle  in  the  Government  of  the  United  States. 
The  town  was  a  political  unit,  and  the  purposes  of  its  or- 
ganization were  the  common  interests  of  the  members  of 
the  community.  The  cooperation  of  the  inhabitants  in  the 
transaction  of  secular  business  created  a  bond  of  community 
feeling  which  tended  to  hold  them  together  in  managing 


'& 


LOCAL   GOVERNMENT   IN   THE   UNITED   STATES     311 

their  religious  affairs.  Thus,  in  the  course  of  time,  as  these 
affairs  became  organized,  the  parish  became  coextensive 
with  the  town;  and  in  certain  instances  the  designations  of 
town  and  parish  were  appHed  indifferently,  each  covering 
both  the  secular  and  the  ecclesiastical  organizations  and 
interests.  In  these  instances  the  vestry  was  only  another 
form  of  town  meeting.  A  later  step  in  the  history  of  the 
town  was  a  more  or  less  complete  separation  of  the  ecclesi- 
astical from  the  civil  affairs,  and  the  application  of  the  term 
parish  to  the  community  as  a  religious  body. 

The  towns  in  New  England  held  a  position  of  greater 
political  importance  than  did  those  in  England.  Because 
the  hundred  did  not  appear  in  New  England,  and  because 
of  the  imperfect  development  oT  the  county,  the  towns 
became  the  basis  of  the  constitutional  structure  that  was 
erected  in  the  States.  In  the  first  place,  they  constituted 
the  fundamental  districts  for  the  assessment  and  collection 
of  taxes.  In  the  second  place,  each  was  required  to  main- 
tain a  body  of  men  with  military  training;  and  thus  the 
towns  were  the  units  of  the  militia  organization.  In  the 
third  place,  the  towns  were  the  districts  recognized  in  the 
representative  system  of  the  colonies  and  the  States. 

Topics. — Antecedents  of  the  town. — Its  relation  to  the  parish. 
— Reason  of  the  town's  prominence  in  New  England. 

References. — Bryce,  American  Commonwealth,  i,  5G2;  Hart, 
Actual  Government,  170;  Fiske,  Civil  Government,  34-47. 

172.  Transitory  Local  Institutions  of  the  Dutch  in  New 
York. — The  feudal  organization  transplanted  by  the  Dutch 
to  New  York  and  established  on  the  banks  of  the  Hudson 
River  was  necessarily  transitory.  Under  the  authority  of 
the  Dutch,  exercised  through  the  Dutch  West  India  Com- 
pany, it  was  provided  that  any  person  who  should  plant  a 
colony  of  fifty  persons  over  fifteen  years  of  age  would  bo 
permitted  to  hold  a  tract  of  land  extending  four  miles  along 


312      THE  GOVERNMENT  OF  THE  UNITED  STATES 

one  side  of  a  navigable  river,  or  two  miles  on  each  side, 
"  and  so  far  into  the  country  as  the  situation  of  the  occupiers 
will  permit."  The  holder  of  such  a  tract  was  called  the 
"Patroon,"  and  the  persons  who  settled  on  his  lands  occupied 
the  position  of  feudal  dependents.  They  had  no  rights  of 
self-government,  but  were  required  to  serve  the  patroon 
for  the  period  specified  in  their  agreement  with  him.  The 
grant  by  which  the  land  was  conveyed  to  the  patroon  made 
it  his  peculiar  property  subject  to  perpetual  inheritance  by 
his  heirs.  1 

When  it  became  manifest  that  feudalism  of  the  European 
type  would  not  flourish  in  the  New  World,  a  new  charter 
was  granted  to  the  company,  and  by  this  charter  a  class  of 
small  proprietors  was  created.  It  provided  that  anyone 
who  should  take  with  him  five  persons  over  fifteen  years  of 
age,  and  settle  on  territory  under  the  jurisdiction  of  the 
Dutch,  might  receive  two  hundred  acres  of  land  as  his  private 
property  and  certain  privileges  with  respect  to  the  public 
lands.  Under  this  charter  villages  came  into  existence  and 
a  form  of  local  self-government  was  established;  but  after 
New  Netherlands  fell  under  the  authority  of  the  English, 
the  local  government  was  so  modified  as  to  make  it  more 
like  that  of  New  England. 

Topics. — Settlement   under   Dutch   West    India   Company. — 
The  patroon. — Later  provision  for  small  holdings. — Rise  of  villages. 

References. — Fiske,    Civil   Government,    79,    110,    111,    150; 

McLauglilin,  History  of  the  American  Nation,  97-104. 

173.  The  Parish  of  Virginia. — The  town  of  New  England 
and  the  parish  of  Virginia  are  reproductions  of  the  same 
institution  from  different  stages  of  its  history.  The  New 
Englanders  laid  stress  on  its  secular  character;  the  Vir- 
ginians, on  its  ecclesiastical  character.    The  New  Englanders 

»  See  §  6. 


LOCAL    GOVERNMENT   IN   THE   UNITED   STATES     313 

went  back  for  th(>ir  model  to  the  earlier  English  town; 
the  Virginians  found  their  model  in  the  English  parish  of 
the  seventeenth  century.  In  the  Virginian  parish  the  parish- 
ioners played  a  less  important  part  than  did  the  members 
of  the  New  England  town  meeting.  At  first  they  elected 
the  vestry,  who  were  expected  to  be  the  "  most  sufficient 
and  selected  men,"  usually  twelve  in  number.  But  later 
the  members  of  the  vestry  acquired  the  power  to  fill  vacan- 
cies in  their  number,  and  thus  the  vestry  became  a  self- 
perpetuating  and  undemocratic  body.  It  appointed  from 
its  members  two  churchwardens,  who  were  the  executive 
agents  of  the  vestry,  and  who  managed  the  finances  of  the 
parish,  guarded  the  morals  of  the  community,  and  did  what- 
ever they  were  able  to  preserve  order.  Although  the  officers 
of  the  parish  performed  certain  purely  secular  functions, 
the  affairs  of  local  civil  government  were  largely  in  the  hands 
of  officers  of  the  county. 

Topics. — Relation  of  parish  to  town. — Parishioners  and  New 
England  freemen. — The  vestry. — The  churchwardens. 

References.— Fiske,  Civil  Government,  36-39,  41,  48,  59-Gl, 
65,  71-73;  McLaughlin,  History  of  the  Avierican  Nation,  164-166. 

174.  County  Government  in  the  South  Atlantic  States. — 
The  county  government  of  the  southern  colonies  was  the 
outgrowth  of  the  peculiar  social  conditions  that  prevailed 
there.  The  population  was  scattered  on  large  plantations 
and  had  few  interests  in  common,  and  the  territory  occupied 
by  any  considerable  number  of  inhabitants  w'as  so  extensive 
as  to  make  impracticable  a  popular  assembly  or  a  general 
county  meeting.  The  local  institutions  of  the  southern 
colonies  have  been  inherited  by  the  States  that  have  suc- 
ceeded them.  "Of  necessity,  therefore,  the  administration 
of  all  local  affairs  is  intrusted  wholly  to  the  county  officers, 
and  the  political  duty  and  privilege  of  the  citizens   begins 

and  ends  on  election  dav.     The  dulv  authorized  officers  of 
21 


314      THE   GOVERNMENT  OF  THE  UNITED  STATES 

the  county  are  thus  charged  with  the  care  and  control  of 
the  county  property;  with  levying  and  collecting  all  State 
and  county  taxes;  the  division  of  the  county  into  election 
districts;  the  laying  out  and  repairing  of  roads  and  bridges; 
the  care  of  the  poor,  the  pohce  of  the  county,  and,  in  gen- 
eral, all  county  and  local  affairs."  These  duties  are  usually 
performed  by  a  body  called  the  board  or  court  of  county 
commissioners  or  supervisors,  generally  elected  by  the 
people.  With  the  development  of  the  system  of  public 
instruction,  the  county  has  become  a  unit  in  the  school 
organization,  the  teachers  being  under  the  direction  of  a 
county  superintendent.  The  county  is  also  a  judicial  dis- 
trict. There  are  county  judges  and  sheriffs.  The  sheriff 
is  the  chief  executive  officer  of  the  county  judiciary.  There 
are  counties  in  New  England,  and  there  are  local  divisions 
of  the  county  in  the  southern  States;  but  these  are  main- 
tained for  the  purposes  of  administration  and  exercise  little 
or  no  legislative  power. 

If  we  were  to  describe  the  government  of  a  county  in 
terms  that  would  be  applied  to  a  State,  we  should  say  that 
the  legislative  power  is  held  by  the  county  board  of  com- 
missioners, or  supervisors,  who  are  elected  for  terms  varying 
from  two  to  four  years,  by  the  voters  of  the  districts  into 
which  the  county  is  divided.  They  deal  with  questions 
relating  to  the  limits  of  the  townships  and  school  districts. 
They  have  charge  of  the  roads,  make  provision  for  taking 
care  of  the  poor,  and  supervise  the  construction  and  repair 
of  public  buildings.  They  determine  in  general  the  amount 
of  money  to  be  raised  by  taxes,  and  what  expenses  are  to 
be  met. 

Conspicuous  among  the  other  officers  of  the  county  is 
the  sheriff.  He  is,  however,  not  the  powerful  official  who 
appeared  under  that  title  in  the  earlier  centuries  in  England. 
It  is  his  duty  to  preserve  the  peace  and  order  of  the  county, 
and  to  execute  the  decrees  and  decisions  of  the  courts  of 


LOCAL   GOVERNMENT   IN   THE   UNITED  STATES     315 

record.  Among  the  other  important  county  officers  arc  the 
county  auditor  and  the  county  clerk.  The  auditor  audits 
bills  against  the  county,  and  the  clerk  keeps  the  records  of 
the  county  board.  In  the  county  government  there  are 
also  an  assessor,  a  treasurer,  and  a  number  of  minor  officers. 
Important  among  the  functions  of  the  county  government 
are  the  care  of  the  poor  and  the  construction  and  preserva- 
tion of  the  roads. 

Topics. — Conditions  favoring  growth  of  the  county  in  the 
Soutli. — The  officers  of  the  county  and  their  duties. 

References. — Bryce,  American  CommonwealUi,  i,  568-583; 
ii,  720;  Fiske,  Civil  Government,  48-100,  ISo;  Hart,  Actual  Govern- 
ment, 174-179. 

175.  Local  Government  in  the  Western  States. — When 

the  inhabitants  of  New  England  and  the  South  Atlantic 
States  w^ent  westward  and  formed  settlements  in  the  region 
of  the  Great  Lakes  and  in  the  Ohio  and  Mississippi  valleys, 
they  reproduced  where  they  settled  their  respective  local 
institutions.  The  country  between  the  main  lines  of  these 
two  migratory  columns  w'as  occupied  in  part  by  New  Eng- 
landers  and  in  part  by  emigrants  of  the  southern  States, 
and  governments  established  in  this  middle  ground  bad 
some  of  the  characteristics  of  the  two  forms.  In  some  places 
the  county  appeared  to  be  more  conspicuous  than  the  town, 
particularly  in  Pennsylvania,  New  Jersey,  New  York,  Ohio, 
Indiana,  and  low^a;  in  other  places  the  town  appeared  to 
be  more  conspicuous  than  the  county.  This  is  the  con- 
dition in  Michigan,  Wisconsin,  Minnesota,  and  in  the  north- 
ern part  of  Illinois.  Wherever  the  influence  of  the  New 
Englanders  was  dominant,  there  the  town  organization  is 
distinctly  recognized.  The  contest  for  supremacy  between 
the  adherents  of  the  town  organization  and  the  supporters 
of  the  county  government  is  illustrated  in  the  history  of 
Illinois.     New    England    influence    was    clearlv   dominant 


316      THE   GOVERNMENT   OF  THE   UNITED  STATES 

in  the  northern  half  of  the  State,  while  the  southern  half 
was  settled  by  pioneers  from  Kentucky  and  Tennessee; 
and,  as  a  consequence  of  this,  the  town  system  prevailed 
in  the  north,  and  the  county  system  in  the  south.  The 
Illinois  State  constitutions  of  1848  and  1870  provide  that 
any  county  may  adopt  the  system  of  township  organization 
"whenever  the  majority  of  the  legal  voters  of  the  county, 
voting  at  any  general  election,  shall  so  determine."  Under 
this  power  the  area  of  the  township  system  has  been  ex- 
tended in  Illinois.  By  a  similar  method  other  western 
States,  as  their  population  increases,  are  adopting  the  same 
system,  and  this  movement  is  attended  by  a  decline  in  the 
importance  of  the  county. 

In  the  States  where  the  mixed  system  prevails — for 
example,  in  Pennsylvania,  Ohio,  Indiana,  and  Iowa — the 
towns  exercise  extensive  powers,  but  not  through  a  demo- 
cratic assembly  as  in  New  England.  The  voters  elect 
ofHcers  who  are  charged  with  the  public  affairs  of  the  town- 
ship. These  officers  in  Ohio  are  three  township  trustees, 
a  clerk,  and  a  sheriff;  in  Pennsylvania,  two  or  three  super- 
visors, an  assessor,  a  town  clerk,  three  auditors,  and  two 
overseers  of  the  poor;  in  Iowa,  three  trustees,  one  clerk,  a 
road  suiiervisor  for  each  road  district,  an  assessor,  two  or 
more  justices  of  the  peace,  and  two  or  more  constables. 
In  States  of  this  class,  however,  the  county  overshadows 
the  township. 

Under  the  system  carried  out  in  surveying  the  lands  of 
the  West,  the  townships  have  been  laid  out  with  regular 
boundaries.  This  system  provides  that  the  land  shall  be 
divided  into  ranges  by  lines  six  miles  apart  running  east  and 
west.  These  ranges  are  numbered  from  a  given  parallel 
north  and  south,  and  are  divided  into  townships  which  are 
numbered  east  and  west  from  a  standard  meridian.  The 
townships  are  six  miles  square,  and  each  is  divided  into 
thirty-six  sections.     Each  section  is  one  mile  square,  and 


LOCAL   GOVERNMENT   IN   THE   UNITED   STATES     317 

the  several  sections  of  a  township  are  numbered  as  indicated 
by  the  following  diagram: 

SECTIONS  OF  TOWNSHIP 


G 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

IS 

17 

IG 

15 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

2G 

25 

31 

32 

33 

34 

3o 

3G 

By  this  system  it  is  easy  to  describe  any  section  or  part 
of  a  section  it  may  be  desired  to  refer  to.  A  description  of  a 
quarter  of  a  section  may  run  somewhat  after  this  manner: 
Northwest  quarter  of  section  eighteen,  township  six  west, 
range  four  north. 

Topics. — Town  and  county  in  Iho  West. — Local  government  of 
Illinois. — Towns  under  mixed  system. — Town  officers  in  Ohio, 
Peimsylvania,  and  Iowa. — The  boundary  and  divisions  of  the 
western  townships. 

References. — Bryce,  American  Commonwealth,  i,  5G5-5S0; 
Fiske,  Civil  Government,  77-93;  Ford,  American  Citizen's  Manual, 
Part  I,  64-66. 

176.  The  Government  of  Cities. — When  the  Federal  Gov- 
ernment was  established,  there  were  very  few  cities  within 
the  territory  of  the  United  States,  and  these  were  occupied 
by  only  a  small  percentage  of  the  inhabitants.  In  the  be- 
ginning of  the  twentieth  centur}^,  there  were  many  cities, 


318      THE   GOVERNMENT   OF  THE  UNITED  STATES 

and  their  inhabitants  constituted  a  large  percentage  of  the 
population  of  the  country.  About  one-third  of  the  inhabit- 
ants of  the  United  States  were  then  living  in  cities. ^  The 
establishment  of  an  efficient  municipal  government  is,  there- 
fore, the  most  important  political  undertaking  before  the 
nation.  The  local  governments  of  the  townships  and  the 
counties  are  not  suited  to  large  numbers  of  persons  living 
within  the  narrow  limits  of  a  city.  An  English  writer  on 
American  institutions  saj's,  "There  is  no  denjdng  that  the 
government  of  cities  is  the  one  conspicuous  failure  of  the 
United  States."  The  condition  of  things  provoking  this 
criticism  is  in  great  measure  due  to  the  attempt  to  govern 
large  cities  under  a  form  of  government  adapted  to  rural 
communities.  At  present  a  city  government  embraces 
executive,  legislative,  and  judicial  departments. 

The  head  of  the  executive  department  is  the  mayor, 
who  is  elected  directly  by  the  voters  of  the  city.  There  are, 
besides  the  mayor,  certain  executive  officers  or  boards  in 
charge  of  important  public  interests,  such  as  the  schools, 
the  parks,  and  the  police.  These  officers  or  boards  are  some- 
times appointed  by  the  mayor,  sometimes  elected  by  the 
voters,  and  sometimes  chosen  by  the  municipal  legislature. 

The  city  legislature,  or  city  council,  is  sometimes  com- 
posed of  one  chamber  and  sometimes  of  two.  The  members 
are  elected  by  the  voters  of  the  city.  In  about  three-fourths 
of  the  cities  the  municipal  council  consists  of  a  single  house, 
the  members  of  which  are  usually  elected  as  representatives 
of  the  several  wards.  In  some  cases,  however,  they  are 
elected  by  a  general  ticket,  and  in  other  cases  they  are  elected 
from  municipal  districts  into  which  the  city  is  divided. 
When  the  legislative  branch  of  the  city  government  con- 
sists of  two  houses,  the  members  of  the  upper  house  are 

^  In  1790  3.4  per  cent  of  the  total  population  lived  in  the  cities;  in 
1820,  4.9  per  cent;  in  1850,  12.5  per  cent;  in  1S60,  IG.l  per  cent;  in 
1890,  29.1  per  cent;  and  in  1900,  31.1  per  cent. 


LOCAL   GOVERNMENT   IN   THE  UNITED   STATES     31') 

sometimes  elected  by  a  general  ticket,  and  in  other  cases 
they  are  elected  from  election  districts,  while  the  members 
of  the  lower  house  represent  the  wards.  The  powers  exer- 
cised by  the  municipal  council  are  such  as  are  conveyed  to 
it  by  the  municipal  charter.  Thus  the  powers  of  the  munic- 
ipal legislature,  like  the  powers  of  Congress,  are  essentially 
enumerated  powers.  Its  main  function  is  the  passing  of 
ordinances  relating  to  all  branches  of  the  municipal  adminis- 
tration, including  all  phases  of  municipal  taxation  and 
expenditure. 

The  city  judiciary  is  composed  of  judges,  either  elected 
by  the  city  voters  or  appointed  by  the  State. 

The  likeness  of  the  general  form  of  this  government  to 
that  of  a  State  becomes  especially  evident  when  the  charter 
is  made  to  appear  as  the  city's  constitution.  This  charter 
is  an  act  of  the  State  legislature.  It  is,  however,  some- 
times drafted  by  a  committee  of  freeholders  and  adopted 
by  the  voters  of  the  city  before  it  is  submitted  to  the  legis- 
lature. It  is  then  introduced  as  a  bill  and  passed  hke  any 
other  bill. 

Where  the  number  of  city  officials  to  be  elected  is  large, 
the  voters  have  great  difficulty  in  voting  intelligently.  This 
has  provoked  inquiry  as  to  the  possibility  of  so  ordering  the 
government  that  fewer  officials  will  have  to  be  elected. 
In  this  direction  are  moving  also  those  persons  who  are 
advocating  a  more  centralized  form  of  city  government, 
who  arc  urging  the  plan  of  electing  the  mayor  and  a  few  of 
tlie  principal  officers,  endowing  them  with  large  powers  of 
appointment,  and  holding  them  responsible  for  the  econom- 
ical and  efficient  administration  of  the  city's  offices.  But 
hitherto  the  majority  of  the  cities  of  the  United  States  have 
been  governed  under  organizations  like  that  described — 
under  a  non-centralized  system — and  have  almost  univer- 
sally been  badly  governed. 

In  attempting  to  govern  cities,  the  people  of  the  United 


320      TMli;   GOVERNMENT   OF   THE   UNITED  STATES 

States  have  shown  how  completely  they  are  dominated  by 
a  single  idea  of  governmental  form.  This  form  is  that  which 
they  have  applied  to  the  nation  and  the  State,  and  which  has 
had  its  most  noteworthy  success  in  rural  communities,  such 
as  the  forest  cantons  of  Switzerland,  the  English  colonies 
in  America,  and  the  United  States  during  the  early  decades 
of  the  nineteenth  century.  When  the  people  of  this  coun- 
try found  themselves  face  to  face  with  the  practical  problem 
of  governing  large  cities,  they  did  not  set  to  work  inde- 
pendently to  find  an  organization  suited  to  the  government 
of  compact  masses  of  persons  with  immense  financial  inter- 
ests, but  instinctively  applied  to  them  our  traditional  form 
of  government.  The  great  city  was  treated  just  as  rural 
districts  were  treated — as  a  political  body  to  be  governed 
by  an  elaborate  political  organization. 

The  main  public  activities  of  a  great  city  are,  however, 
not  political  but  economic.  They  comprehend  construct- 
ing and  cleaning  streets;  providing  facilities  for  disposing 
of  sewage;  controlling  the  construction  of  buildings  and 
means  of  transportation;  employing  and  paying  teachers 
and  other  municipal  employees  of  various  grades;  providing 
light  and  water  for  public  and  private  use;  and  doing 
numerous  other  things  that  fall  within  the  field  of  practical 
economics.  The  business,  therefore,  devolving  upon  a  city 
government  is  not,  either  in  extent  or  variety,  largely 
different  from  that  performed  at  present  by  certain  great 
industrial  corporations.  The  president  of  such  a  corpo- 
ration wishes  a  few  persons  trained  technically  and  by 
experience  for  the  different  branches  of  work  to  be  done — 
men  on  whom  he  can  depend  to  manage  the  several  depart- 
ments assigned  to  them,  and  who  will  be  accountable  to  him. 
If,  instead  of  following  this  method,  he  were  to  introduce  an 
organization  like  that  of  any  one  of  our  cities,  if  he  were  to 
gather  for  his  assistance  two  large  bodies  of  men  more  or 
less  ignorant  of  the  task  in  hand  and  entirely  without  ex- 


i 


\ 


I 


LOCAL   GOVERNMENT   IN  THE   UNITED   STATES     321 

perience  in  this  kind  of  undertaiving,  his  corporation  would 
collapse  under  the  stress  of  competition  with  other  cor- 
porations more  wisely  organized.  But  our  cities  are  able  to 
keep  up  their  clumsy  and  wasteful  processes,  because  they 
are  not  in  a  competitive  undertaking.  If  they  make  waste- 
ful blunders,  if  they  are  on  the  losing  side  of  their  economic 
transactions,  it  is  all  covered  by  public  funds  drawn  from 
the  taxpayers.  Into  the  management  of  their  cities  the 
American  people  have  instinctively  carried  their  traditional 
form  of  government.  Maintaining  the  form  has  been  more 
to  them  than  securing  the  result  of  good  administration. 
When  one  regards  the  general  enlightenment  of  the  nation, 
its  pretension  to  high  political  standing,  and  then  considers 
the  governmental  condition  of  many  of  the  cities,  it  does  not 
seem  extravagant  to  affirm  that  they  constitute  a  national 
disgrace.  The  leading  nations  of  Europe  reach  better 
results.  By  a  system  which  centralizes  power  and  provides 
for  individual  responsibility,  the  administration  of  munic- 
ipal affairs  in  all  of  these  nations  is  rendered  more  efficient 
and  more  economical  than  the  municipal  administration  of 
American  cities. 

Topics. — Urban  and  country  population. — General  character  of 
city  government  in  the  United  States. — General  form  of  city  govern- 
ment: the  executive;  the  legislative;  the  judiciary. — Likeness  to 
State  government. — Difficulty  in  electing  city  officials. — Municipal 
affairs  compared  to  affairs  of  a  private  corporation. — Centraliza- 
tion and  individual  responsibility. 

References. — Bryce,  American  Commonwealth,  i,  Chap.  L; 
Fiskc,  Civil  Government,  98-140;  Ford,  American  Citizen's  Manual, 
Part  I,  66-83;  Hart,  Actual  Government,  Chap.  XI;  Cooley,  Consti- 
tutional Law,  343-345. 

FOR  ADVANCED  STUDY 

The  Town  and  the  County. — ^Howard,  Local  Constitutional 
History;  Cooley,  Constitutional  Law,  Chap.  XVII;  Cooley,  Consti- 


322      THE   GOVERNMENT   OF   THE    UNITED   STATES 

tutional  Limitations,  Chap.  VIII;  Ford,  American  Citizen's  Manual, 
Part  I,  Chap.  II;  Hf)smcr,  Anglo-Saxon  Freedom,  Chap.  XVII; 
Hinsdale,  American  Government,  Chap.  LV;  Goodnow,  Compara- 
tive Administrative  Law,  i,  162-233;  Bryce,  American  Common- 
wealth, i,  Chaps.  XLVIII,  XLIX;  A.  de  Tocqueville,  Democracy  in 
America,  \,  Chap.  V;  Fiske,  Civil  Government,  Chaps.  II-IV. 

The  Municipal  Council. — Eaton,  Government  of  Municipali- 
ties, Chaps.  X,  XI;  Dillon,  Municipal  Corporations,  \,  Chaps.  X-XII; 
Conkling,  Citxj  Goverjimcnt,  Chap.  Ill;  Goodnow,  Municipal  Prob- 
lems; Fairlie,  Municipal  Administration,  Chap.  XVII;  Wilcox,  Study 
of  City  Goxicrnmcnt,  143-179;  IMathcws,  City  Government  of  Boston. 

The  Government  of  Municipalities. — Bryce,  American 
Commonwealth,  i,  L-LII;  ii,  LXXXVIII-LXXXIX;  Conkling,  City 
Government;  Cooley,  Constitutional  Law,  Chap.  XVII;  Cooley, 
Constitutional  Limitations,  Chap.  VIII;  Dillon,  Municipal  Corpo- 
rations; Eaton,  Government  of  Municipalities;  Fairlie,  Municipal 
Administration;  Goodnow,  Comparative  Administrative  Law,  i, 
162-233;  Goodnow,  Municipal  Home  Rule;  Wilcox,  Study  of  City 
Government. 

The  Powers  of  the  Mayor.— Fa/e  Review,  viii,  274-288; 
Municipal  Affairs,  iii,  33-60;  National  Conference  for  Good  City 
Government,  Proceedings,  1898:  71-80,  152-219;  1900:  119-126, 
136-146;  Political  Science  Quarterly,  2:  291-312;  Fairlie,  Munici- 
pal Administration,  Chaps.  XVIII,  XIX;  Eliot,  American  Contri- 
butions to  Civilization,  Xo.  7;  Parker,  Municipal  Government  in 
Massachusetts,  14-24;  Durand,  Council  vs.  Mayor  {Political  Science 
Quarterly,  15:  426-451,  675-709). 

The  Beginnings  of  the  Public  School  System.— Martin, 
Evolution  of  the  M assaehusctts  Public  School  System;  Bush,  Higher 
Education  in  Massachusetts;  Boone,  Education  in  the  United  States; 
Adams,  Editor,  Contributions  to  American  Educational  History; 
United  States  Bureau  of  Education,  Circulars  of  Information. 

Municipal,  State,  and  Federal  Debts.— Adams,  Public 
Debts;  Noyes,  Thirty  Years  of  American  Finance;  Kearny,  Sketch 
of  American  Finances;  Scott,  Repudiation  of  State  Debts;  Fairlie, 
Municipal  Administration,  Chap.  XIV;  Adams,  Science  of  Finance, 
Book  III. 


LOCAL   GOVERNMENT   IN   THE   UNITED  STATES     32 


City  Streets. — Popular  Science  Monthly,  5G:  524-539;  Faii-lie, 
Municipal  Administration,  227-238;  Lalor,  Cyclopaedia,  i,  464; 
Nation,  49:  124,  125,  1G2,  163. 

Municipal  Socialism. — North  American  Review,  172:  445- 
455;  Arena,  19:  43-53;  25:  198-209;  Forum,  32:  201-216;  Inde- 
pendent, 53:  2633-2636;  47:  569-579;  52:  1165-1168;  Engineering 
Magazine,  5:  725;  9:  44;  Cosmopolitan,  33:  425-435. 

The  Poor  of  the  Great  Cities. — Riis,  Battle  with  the  Slums; 
North  American  Review,  161:  685-692;  Atlantic  Monthly,  83:  163- 
178;  Riis,  Tenements;  Scribner's  Magazine,  16:  108-117;  Century, 
53:  247-252;  45:  314-316;  Fonan,  19:  495-500;  Review  of  Reviews, 
6:720,  721;  Scribner's  Magazine,  11:531-556;  697-721;  13:357- 
372;  14:  121-128;  17:  102-114;  Seventh  Special  Report  of  the  Com- 
missioner of  Labor,  1894. 

The  Sanitation  of  Cities. — Forum,  20:  747-760;  Outlook, 
69:  728-730;  Harper's  Magazine,  71:  577-584;  North  American  Re- 
view, 161:  49-56;  Outlook,  62:  416;  66:  126-128. 


i 


CHAPTER  XIII 

THE     INDIVIDUAL     CITIZEN     IN     RELA- 
TION   TO    THE    GOVERNMENT 

177.  The  Minor. — The  first  specific  act  of  the  Govern- 
ment with  particular  reference  to  the  individual  citizen  is 
the  registration  of  his  birth.  In  the  United  States  this 
registration  is  much  less  complete  than  in  some  other  coun- 
tries. It  is  made  by  different  officers  in  different  parts  of 
the  country.  In  the  New  England  town  it  is  made  by  the 
town  clerk.  In  other  places  the  health  officer  keeps  a  rec- 
ord of  all  births,  and  this  record  is  deposited  in  the  office  of 
the  county  recorder. 

The  period  of  minority  extends,  according  to  the  com- 
mon law,  till  the  age  of  twenty-one  years  for  both  sexes. 
In  some  of  the  States,  however,  young  women  are  deemed 
to  be  of  age  at  eighteen.  Before  becoming  of  age  a  person 
cannot  do  any  act  to  the  injury  of  his  property  that  he  may 
not  rescind  when  he  attains  his  majority.  But  during 
a  part  of  his  minority,  that  is,  after  the  age  of  fourteen, 
he  is  held  to  be  responsible  for  crimes  committed;  for  it  is 
presumed  that  in  the  period  between  fourteen  and  twenty- 
one  he  is  able  to  discriminate  between  right  and  wrong 
conduct.  Before  the  age  of  fourteen  there  is  a  strong 
presumption  of  innocence,  a  strong  presumption  that  a 
child  has  not  a  sufficient  knowledge  of  conduct  to  bring  any 
act  of  his  into  the  same  class  with  the  criminal  acts  of  mature 
persons.  This  presumption  may  be  overcome  by  evidence. 
It  may  be  shown  that  the  child  appreciates  the  criminality 
324 


THE  CITIZEN   IN  RELATION  TO  THE  GOVERNMENT   325 

of  his  conduct,  •and  is  thus  guilty  in  the  same  sense  that  the 
mature  criminal  is  guilty.  After  fourteen  he  is  treated,  as 
to  all  criminal  charges,  as  an  adult. 

If  a  minor  owns  land,  it  can  be  sold  only  by  direction  of 
a  court;  and  if  the  guardian  would  exchange  the  minor's 
money  or  other  personal  property  for  land,  he  must  first 
be  authorized  by  a  court  to  do  this. 

The  resident  of  the  United  States  as  a  minor  enjoys 
the  protection  of  the  laws,  but  is  unable  to  vote.  Property 
may  be  held  for  him  by  a  guardian  or  a  trustee.  If  he 
makes  contracts  they  cannot  be  enforced  against  him;  for 
he  may  successfully  set  up  as  a  defense  that  he  is  not  liable 
because  he  is  a  minor.  If,  however,  he  has  made  a  contract 
for  necessities,  it  may  be  enforced  against  him.  Under 
the  designation  of  necessities  are  embraced  whatever  things 
are  needful  for  the  minor's  support  in  his  proper  station  of 
life,  including  a  certain  expenditure  for  education.  The 
fact  that  a  minor  cannot  be  legally  bound  by  contracts  with 
respect  to  other  matters  makes  it  inconvenient  and  un- 
desirable for  him  to  attempt  to  carry  on  business  in  his  own 
name.  If  a  minor  is  engaged  by  a  person  of  age  for  labor 
or  for  service  of  any  kind,  the  courts  will  enforce  the  con- 
tract concerning  wages  which  he  may  make  with  his  em- 
ployer. His  father,  or  his  legal  parent,  has  the  right  to 
receive  the  wages.  The  parent  may,  however,  renounce 
this  right,  and  thus,  emancipating  the  minor,  make  it  pos- 
sible for  him  to  collect  and  hold  his  wages. 

Topics. — Registration  of  births. — The  period  of  minority. — 
The  iniiior's  property. — Contracts  by  minors. 

References. — Kent,  Commentaries,  ii,  233-245;  Smith,  Train- 
ing for  Citizenship,  §  §  58,  59,  394. 

178.  Education. — Education  is  counted  as  one  of  the 
minor's  legally  recognized  necessities.  It  is  also  one  of  the 
things  which  it  is  the  duty  of  the  parent  to  furnish  his 


326      THE   GOVERNMENT   OF  THE  UNITED   STATES 

child.  It  is,  moreover,  a  subject  which  a  repubUc  cannot 
neglect  without  endangering  its  free  institutions.  The 
education  required  may  be  obtained  either  in  private  schools 
or  in  public  schools.  It  is  extremely  important  for  the 
Republic  to  have  all  of  its  citizens  educated,  yet  there  is  a 
possibility  that  private  enterprise  will  not  provide  as  many 
schools  as  are  needed.  These  facts  have  made  it  seem 
advisable  for  the  Government  to  establish  and  maintain  a 
system  of  public  instruction.  Many  of  the  States  have, 
moreover,  passed  laws  requiring  children  between  certain 
ages,  as  from  the  eighth  to  the  fourteenth  year,  to  attend 
school.  This  is  what  is  known  as  compulsory  educa- 
tion. From  Massachusetts,  where  public  instruction  was 
first  established  in  the  colonies,  the  system  has  extended 
to  all  parts  of  the  country.  The  maintenance  of  public 
schools  has  also  been  made  an  important  part  of  the 
governmental  policy  carried  out  in  Porto  Rico  and  the 
Philippines. 

In  establishing  a  government  for  the  territory  northwest 
of  the  Ohio  River,  Congress  affirmed  in  the  Ordinance  of 
1787  that  "Rehgion,  moraUty,  and  knowledge,  being  neces- 
sary to  good  government,  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be  en- 
couraged." A  certain  portion  of  each  township,  the  six- 
teenth section,  was  set  apart  for  the  support  of  public 
schools.  In  States  admitted  since  1850,  two  sections  in  each 
township  have  been  transferred  from  the  Federal  Govern- 
ment to  the  several  States  to  be  used  for  this  purpose.  Land 
warrants  for  10,000,000  acres  were  given  to  the  States  in 
1862  for  the  support  of  agricultural  colleges.  The  lands 
called  for  by  these  warrants  might  be  located  wherever  there 
were  unclaimed  public  lands. 

The  public  schools  do  not  present  all  the  opportunities 
for  education  offered  to  American  boys  and  girls.  There 
are  also  many  private  schools  which  they  may  attend. 


THE  CITIZEN  IX  RELATION  TO  THE  GOVERNMENT  327 

These  are  supported  by  gifts  or  endowments  made  by  private 
persons,  or  by  church  organizations.  The  church  schools 
it  is  naturally  expected,  besides  rendering  service  in  ad- 
vancing the  general  education  of  the  nation,  will  be  the 
means  of  attaching  many  young  persons  to  the  churches 
supporting  them.  It  is  expected,  moreover,  that  in  the 
large  number  of  colleges  maintained  by  the  churches  a 
desire  will  be  aroused  in  many  students  to  prepare  them- 
selves to  serve  the  church  as  priest  or  minister. 

Topics. — Education  one  of  the  minor's  necessities. — Public 
instruction. — Compulsory  education. — Education  in  the  North- 
west.— Private  schools. 

References. — Kent,  Comvientaries,  i,  239,  240;  Smith,  Training 
for  Citizenship,  §§  12,  40,  58,  31S,  391-397. 

179.  The  Schools. — There  are  several  grades  of  public 
schools:  (1)  The  "  common  "  schools  in  the  country  districts; 
(2)  the  primary  and  grammar  schools;  (3)  the  high  schools. 
The  second  and  third  classes  of  schools  are  in  the  larger 
towns  and  cities.  The  "  common  "  schools  and  the  primary 
and  grammar  schools  are  largely  maintained  by  the  State 
school  fund.  The  high  schools  are  generally  supported  by 
the  cities  or  union  districts  in  which  they  are  established. 
General  control  over  the  public  schools  of  a  State  is  exer- 
cised by  a  State  superintendent  of  education,  and  more 
immediate  direction  by  county  superintendents.  For  the 
Philippines  there  is  a  general  superintendent  for  the  whole 
archipelago  and  a  division  superintendent  for  each  of  the 
school  divisions.  A  district  school  board  or  school  com- 
mittee, consisting  of  three  or  ff)ur  members,  is  the  governing 
body  of  the  district  in  matters  relating  to  schools.  It  cm- 
ploys  the  teacher  or  teachers,  and  conducts  all  the  business 
connected  with  the  maintenance  of  the  school.  The  school 
board  acts  as  a  corporate  body,  the  individual  membei-s 
separately  exercising  only  such  authority  as  is  conferred 


328      THE   GOVERNMENT  OF  THE   UNITED  STATES 

upon  them  by  the  board.  In  many  of  the  States  women 
can  vote  for  school  trustees,  and  may  be  elected  and  may 
serve  as  members  of  the  board.  The  trustees,  or  members 
of  the  board,  are  not  expected  to  interfere  in  the  internal 
affairs  of  the  school.  This  is  the  province  of  the  teacher, 
who,  in  addition  to  the  work  of  carrying  on  the  instruction, 
is  expected  to  maintain  discipline  among  the  pupils.  But 
in  case  unjust  punishments  are  imposed,  appeal  may  be 
made  from  the  teacher  to  the  superior  authority  of  the 
school  board  or  the  courts.  The  courts  will  generally  sus- 
tain the  teacher  who  imposes  corporal  punishment,  but  will 
insist  that  such  punishment  be  reasonable. 

Topics. — Classes  of  public  schools  and  their  support. — General 
control. — The  teacher. 

References. — Smith,  Training  for  Citizenship,  §§  42-50,  G4, 
76,  102,  103,  130,  277,  301 ;  Hart,  Actual  Government,  535-554. 

i8o.  Marriage. — The  individual  citizen  who  would  mar- 
ry finds  himself  under  restrictions  established  by  the  Gov- 
ernment. He  must  be  of  sound  mind,  or  have  sufficient 
understanding  to  deal  with  discretion  in  the  ordinary  affairs 
of  life.  Idiots  and  insane  persons,  not  being  competent  to 
make  a  contract,  are  unable  to  make  a  legal  marriage.  As 
the  basis  of  marriage  is  consent,  a  form  of  marriage  pro- 
cured by  force  or  fraud  is  void.  And  no  lawful  marriage 
is  possible,  except  of  persons  who  have  arrived  at  the  age 
of  consent.  This  age,  by  the  common  law,  is  fixed  at  four- 
teen in  males  and  twelve  in  females.  English  law  borrowed 
this  age  from  the  Roman  law.  It  was  the  established  age 
in  France  before  the  French  Revolution,  but  under  the 
Code  Napoleon  the  age  of  consent  was  raised  to  eighteen  for 
young  men  and  fifteen  for  young  women.  For  the  ages 
fixed  by  the  common  law,  other  ages  may  be  substituted  by 
statutes.  "The  consent  of  parents  and  guardians  to  the 
marriage  of  minors  is  not  requisite  to  the  validity  of  the 


THE  CITIZEN   IN  RELATION  TO  THE  GOVERNMENT   329 

marriage."  This  rule  of  the  common  law  does  not  coincide 
with  the  practice  as  regulated  by  State  statutes  in  many 
cases,  where  a  more  advanced  age  or  consent  of  parents  is 
required.  Nor  does  it  coincide  with  the  practice  of  many 
European  countries,  where  the  marriage  of  minors  is  void 
without  the  consent  of  the  father,  or  of  the  mother  if  she 
be  the  survivor. 

Topics. — Persons  not  competent  to  marry. — The  age  of  consent. 
— Marriage  of  minors  without  consent. 

References. — Kent,  Commentaries,  ii,  75-93. 


i8i.  The  Family, — With  marriage  and  the  birth  of  chil- 
dren, a  new  family  is  established.  The  family  may  be 
called  a  natural  society,  as  distinguished  from  a  political 
society,  since  it  has  its  basis  in  the  natural  instincts  and 
affections  of  human  beings.  It  maintains  in  all  times 
essentially  the  same  form,  whatever  may  be  the  attitude 
of  the  government  toward  it.  In  its  narrower  limits  it 
consists  of  father,  mother,  and  children.  Under  the  laws 
of  ancient  Rome,  the  father  as  head  of  the  family  had  larger 
authority  over  the  other  members  than  is  exercised  by  the 
head  of  a  family  in  this  country.  In  Japan  matters  relating 
to  the  family  are  controlled  rather  by  social  customs  than 
by  specific  laws  enacted  by  the  government.  But  every- 
where, in  spite  of  minor  differences,  it  is  the  same  kind 
of  organization  or  society.  Everywhere  the  children  arc 
dependent  on  their  parents  for  a  long  period,  and  the  parents 
exercise  over  them  complete  authority.  But  parental 
authority  involves  parental  duties:  the  duty  to  support  the 
children  during  the  long  period  of  helplessness,  the  duty  to 
care  for  them  when  sick,  the  duty  to  clothe  them,  and  the 
duty  to  educate  them  properly.  The  children,  on  the  other 
hand,  owe  to  their  parents  obedience;  and  the  habitual 
obedience  of  the  child  to  parental  autliority  prepares  him 


330      THE   GOVERNMENT  OF  THE   UNITED   STATES 

for  obedience  to  the  higher  authority  of  the  state  when  he 
shall  have  become  a  mature  citizen. 

The  income  of  the  family  constitutes  a  common  fund, 
which  is  expended  for  the  good  of  all  the  members.  This 
fund  is  controlled  by  the  father,  unless  b}^  special  provision 
the  control  of  a  certain  part  of  it  is  left  in  the  hands  of  the 
mother.  Whatever  property  of  the  family  is  not  thus  ex- 
cepted may  be  disposed  of  by  will  by  the  father  at  his  death. 
If  no  will  is  made,  the  property  is  divided  according  to  law 
and  distributed  to  the  mother,  if  the  mother  survives  the 
father,  and  to  the  children.  There  is,  however,  certain 
community  property  of  the  family  which  the  husband 
cannot  dispose  of  without  the  consent  of  the  wife.  Such 
an  item  of  property  is  the  household;  and  there  are  certain 
articles  of  personal  property  that  cannot  be  taken  from  the 
family  under  the  law  without  the  consent  of  the  husband 
or  the  wife  or  both.  Such  articles  are  the  household  fur- 
niture, clothing,  and  tools  necessary  to  enable  the  house- 
holder to  carry  on  his  business  or  trade. 

Topics. — Nature  of  the  family.— Head  of  the  family  in  Rome.— 
Family  in  Japan. — Parental  duty  and  authority. — Family  income. 
— Distribution  of  property  on  the  death  of  the  head  of  the  family. 

References.— Smith,  Training  for  CitizensU'p,  §§31-37,  169. 

182.  Master  and  Servant. — In  the  earlier  centuries, 
among  many  peoples  the  family  was  thought  of  as  made  up 
of  parents,  children,  and  a  slave  or  slaves.  The  Greek 
philosopher  Aristotle  included  the  slave  in  his  view  of  the 
ideal  family.  But  the  disappearance  of  slavery  in  enlight- 
ened society  has  left  the  modern  family  composed  of  parents 
and  children.  The  slave,  therefore,  as  a  kind  of  servant,  or 
as  a  member  of  a  household,  may  be  neglected  here.  But  a 
consideration  of  the  affairs  of  American  life  make  it  neces- 
sary to  take  account  of  hired  servants  and  their  relation  t(j 
their  employers.     This  relation  rests  altogether  on  contract. 


THE  CITIZEN  IN  RELATION  TO  THE  GOVERNMENT  331 

The  servant  is  bound  by  contract  to  render  service;  and 
the  employer,  to  pay  stipulated  wages.  "  But  if  the  serv- 
ant, hired  for  a  definite  term,  leaves  the  service  before  the 
end  of  it,  without  reasonable  cause,  or  is  dismissed  for  such 
misconduct  as  justifies  it,  he  loses  his  right  to  wages  for  the 
period  he  has  served.  A  servant  so  hired  may  be  dismissed 
by  the  master  before  the  expiration  of  the  term,  either  for 
immoral  conduct,  willful  disobedience,  or  habitual  neglect."  ^ 
It  is  held  that  a  servant  who  commits  a  crime,  although  it 
may  not  be  immediately  injurious  to  his  master,  cannot 
recover  his  wages.  "A  person  hired  by  the  year  cannot 
quit  the  service  without  forfeiting  his  salary,  nor  can  he  be 
dismissed  at  pleasure,  or  without  just  cause,  and  thereby 
be  deprived  of  it."  ^  But  a  domestic  servant  may,  by  the 
custom  respecting  him,  be  dismissed  on  a  month's  notice, 
or  on  the  payment  of  a  month's  wages,  although  he  may 
have  been  hired  for  a  year.  If  his  employer  sends  him 
away  without  just  cause  before  the  end  of  the  term,  he  is 
entitled  to  his  full  wages  for  the  term.^  The  master  is 
responsible  for  the  act  of  the  servant,  when  the  act  is  done 
by  the  authority  of  the  master.  This  holds  true  whether 
the  act  under  consideration  is  the  formation  of  a  contract 
or  the  infliction  of  an  injury. 

Topics. — The  slave  in  the  early  family. — The  modern  hired 
servant. — His  tenure  of  position. — Muster's  responsibility. 

183.  Individual  Control  of  Property. — When  the  citizen 
becomes  of  age,  he  enters  into  the  full  control  of  any  prop- 
erty that  may  have  legally  belonged  to  him  as  a  minor.  At 
the  same  time  he  obtains  the  general  right  to  accjuirc  prop- 
erty;   to  hold,  enjoy,  and  transfer  it;    and  to  transmit  it 

*  Kent,  Commentaries,  ii,  258. 
^  Kent,  Commentaries,  259,  note. 
'  Kent,  Commentaries,  ii,  259,  note, 


332      THE  GOVERNMENT   OF  THE   UNITED  STATES 

by  inheritance.  This  freedom  is  supported  by  the  behef 
that  in  its  enjoyment  by  individuals  the  pubhc  welfare  will 
be  more  surely  advanced  than  by  any  other  means.  The 
right  of  an  individual  citizen  to  hold  a  certain  piece  of 
property  is,  however,  limited  by  the  superior  right  of  the 
state.  If  the  property  in  question  is  needed  for  some 
public  use,  it  may  be  taken  by  the  state  under  the  state's 
right  of  eminent  domain,  but  only  after  having  given  proper 
compensation  to  the  individual  owner.  Another  condi- 
tion to  which  the  owner  of  private  property  is  subject,  is 
that  he  must  pay  such  taxes  as  are  imposed  by  the  Govern- 
ment. 

There  are  many  instances  when  use  or  destruction  of 
private  property  by  persons  other  than  the  owners  is  lawful. 
If  a  common  highway  is  out  of  repair,  a  person  entitled  to 
use  the  highway  may  lawfully  go  through  an  adjoining 
private  inclosure.  If  a  fire  is  raging  in  a  city,  it  is  lawful 
to  destroy  houses  to  prevent  the  spreading  of  the  conflagra- 
tion. 

Topics. — Right  to  control  individual  property. — Conditions  of 
this  right. — Destruction  of  private  property  for  the  public  good. 

References.— Kent,  Commentaries,  ii,  325-340;  Smith,  Train- 
ing for  Citizenship,  §§  8,  16,  31,  37,  74,  125,  131,  180. 

184.  Voting.— On  reaching  the  age  of  twenty-one,  the 
citizen  of  the  United  States  prepares  to  take  part  in  the 
government  by  voting  for  local.  State,  or  Federal  officers, 
or  by  voting  on  propositions  submitted  to  the  people  for 
their  decision,  such  as  amendments  to  a  State  constitution, 
or  propositions  to  issue  municipal  bonds,  or  other  questions 
that  are  referred  for  decision  to  the  popular  vote.  The 
requirements  that  must  be  fulfilled  before  he  can  vote  are 
fixed  by  the  State.  As  each  State  fixes  these  requirements 
independently,  it  is  not  to  be  supposed  that  they  will  be 
uniform  throughout  the  Union.     But  since  the  adoption 


THE  CITIZEN  IN  RELATION  TO  THE  GOVERNMENT   333 

of  the  Constitution,  there  has  been  manifest  a  tendency  to 
extend  the  suffrage  by  making  fewer  requirements  of  per- 
sons desiring  to  become  voters.  In  almost  all  the  States 
at  present  no  property  qualification  is  required.  Rhode 
Island,  New  Hampshire,  Virginia,  and  North  Carolina  are 
exceptions.  In  each  of  these  there  is  still  a  property 
qualification.  Practically  all  male  citizens  over  twenty- 
one  years  of  age  who  have  been  resident  in  the  State  and  in 
the  town  or  county  for  some  brief  period  are  entitled  to 
vote.  In  four  States — Colorado,  Idaho,  Wyoming,  and 
Utah — women  have  the  suffrage.  In  about  two-thirds  of 
the  States,  the  citizen  is  obliged  to  register  before  he  is  per- 
mitted to  vote.  If  he  can  vote  in  the  State  for  members 
of  the  lower  house  of  the  State  legislature,  he  can  vote  in 
Federal  elections — that  is  to  say,  for  members  of  the  House 
of  Representatives  or  for  presidential  electors. 

Topics. — Qualification  of  voters. — Woman  suffrage. 
References. — Smith,  Training  for  Citizenship,  §§  85,  107,  304; 
Hart,  Actual  Government,  72-85. 

185.  The  Citizen  and  the  Political  Party. — Having  be- 
come a  voter  and  assumed  control  of  his  property,  the  citizen 
may  wish  to  have  a  larger  part  in  the  affairs  of  the  Gov- 
ernment than  that  represented  by  voting.  He,  therefore, 
allies  himself  with  some  one  of  the  political  parties.  He 
may  not  agree  fully  with  all  of  the  principles  of  any  of  the 
existing  parties;  but  he  attaches  himself  to  that  one  whose 
principles  most  nearly  coincide  with  his  own,  or  with  that 
cne  to  w'hich  his  father  belonged,  or,  perhaps,  with  that  one 
which  haiDpens  to  be  dominant  in  his  community.  This 
party,  like  all  political  parties,  he  finds  to  be  simply  a  volun- 
tary association  of  citizens  who  use  it  as  a  means  for  putting 
some  of  its  members  into  oflices  of  the  Government,  and 
for  making  its  principles  determine  the  conduct  of  public 
affairs. 


334      THE   GOVERNMENT   OF  THE   UNITED   STATES 

The  political  party  is  a  voluntary  association  and  has  no 
authority  like  that  exercised  by  Government;  yet  it  has  an 
organization  of  its  own,  which  embraces  committees  for 
local,  or  county,  interests,  committees  for  State  interests, 
and  a  national  committee  for  the  direction  of  the  party's 
national  affairs.  The  county  committee  consists  of  one  or 
more  members  from  each  township,  and  from  each  ward  of 
the  cities.  The  members  of  the  county  committee  are 
selected  or  appointed  by  a  county  convention  of  members 
of  the  party.  The  county  convention  determines,  more- 
over, of  how  many  members  the  county  committee  shall 
consist.  The  officers  of  the  county  committee  are  a  chair- 
man, a  secretary,  and  a  treasurer.  It  is  the  duty  of  this 
committee  to  assist  in  carrying  out  the  party  policy;  to 
fix  dates  and  places  for  holding  county  conventions;  to 
collect  and  disperse  funds  for  defraying  expenses  of  election 
campaigns,  and  to  procure  and  distribute  pamphlets  and 
papers  in  advocacy  of  party  interests,  and  to  provide  for 
political  meetings. 

By  allying  himself  with  a  political  party,  and  working 
for  its  interests,  the  citizen  may,  perhaps,  become  the  repre- 
sentative of  his  township,  or  ward,  in  the  county  com- 
mittee; and  by  virtue  of  this  position  he  comes  to  be  con- 
sidered a  party  leader  in  his  township  or  ward.  In  this 
capacity  he  becomes  the  local  manager  of  the  party's  affairs. 
He  calls  to  order  the  primary,  and  has  more  or  less  influence 
in  determining  its  action.  The  primary  is  a  meeting  of  the 
members  of  the  party  in  the  township  or  in  the  smallest 
political  division.  It  is  held  for  the  purpose  of  nominating 
officers  to  be  voted  for  at  an  approaching  election,  or  of 
naming  delegates  to  a  larger  party  convention.  There  is 
a  certain  distinction  between  a  primary  and  a  caucus,  but 
it  is  not  always  maintained  in  practice.  A  caucus  is  a 
meeting  of  members  of  a  party  to  decide  on  measures  or 
persons  to  be  presented  for  the  consideration  of  the  body 


THE  CITIZEN"   IX   RELATION  TO  THE  GOVERNMENT   335 

that  has  the  right  to  take  definite  action.  If  a  primary  is 
held  to  appoint  delegates  to  a  convention,  a  caucus  may  be 
called  to  draw  up  a  Hst  of  names  to  be  voted  on  by  the 
primary.  The  caucus  may  consist  of  a  part  or  all  of  the 
members  of  the  primary.  The  list  of  names  to  be  presented 
is  called  a  "slate."  Sometimes  a  "slate"  is  prepared  and 
presented  by  a  very  few  persons  instead  of  by  a  numerously 
attended  caucus.  The  primary  itself,  inasmuch  as  it  is  a 
meeting  to  present  candidates  to  be  voted  for  by  another 
body  or  by  the  voters  of  a  town  or  other  district,  may  be 
called  a  caucus. 

Delegates  are  persons  appointed  to  represent  the  party 
members  residing  in  the  township  or  any  other  district  that 
is  individually  represented  in  the  convention.  They  act 
as  agents  of  the  voters.  Sometimes  resolutions  are  passed 
instructing  them;  but,  if  they  have  no  such  instructions, 
they  vote  in  the  convention  as  they  please.  The  primary 
nominates  party  candidates  for  township  or  precinct  offices; 
but  candidates  for  county  or  State  offices  are  nominated 
by  conventions  composed  of  delegates  from  subordinate 
districts,  such  as  towns  or  counties. 

Topics. — Choice  of  party. — Nature  of  a  political  party. — 
County,  State,  and  national  party  committees. — The  county  con- 
vention.— The  primary. — A  caucus. — Delegates  to  a  convention. 

References. — Macy,  Political  Parties  in  the  United  States; 
Fiskc,  Civil  Government,  128,  129,  255,  273,  274. 

1 86.  The  County  Convention. — If  several  persons  are 
chosen  at  a  primary  as  delegates  to  a  county  convention, 
these  persons  constitute  the  delegation  from  the  town  or  pre- 
cinct where  they  arc  chosen.  The  chairman  of  the  delega- 
tion carries  a  written  statement  signed  by  the  chairman 
and  secretary  of  the  primary,  which  is  evidence  that  the 
persons  named  have  been  chosen  delegates  to  the  convention. 
This  writing  constitutes  the  credentials  of  the  delegation. 


336      THE   GOVERNMENT   OF  THE   UNITED  STATES 

The  chairman  of  the  county  committee  calls  the  con- 
vention to  order  at  a  time  previously  fixed.  Three  com- 
mittees are  then  appointed:  one  on  organization  and  order 
of  business;  one  on  credentials;  and  one  on  resolutions, 
these  committees  are  sometimes  appointed  by  the  chairman 
and  sometimes  by  vote  of  the  delegates.  While  the  com- 
mittees are  preparing  their  reports,  the  convention  either 
takes  a  recess  or  listens  to  speeches.  In  the  latter  case  an 
opportunity  is  presented  for  the  ambitious  delegate  who  is 
at  the  same  time  an  effective  speaker  to  win  the  favor  of  the 
convention,  and  thus  attain  a  more  conspicuous  place  in 
his  party.  The  committee  on  credentials  receives  the 
credentials  of  the  delegations  from  the  several  townships, 
wards,  or  precincts;  and  in  case  there  are  no  rival  claimants, 
the  persons  named  in  the  credentials  will  be  accepted.  But 
if  each  of  two  groups  claims  to  be  the  proper  delegation 
from  a  certain  township  or  ward  or  precinct,  the  committee 
will  recommend  the  acceptance  of  the  delegation  which,  from 
its  credentials,  appears  entitled  to  seats  in  the  convention. 

The  proceedings  in  the  convention  are  held  under 
an  order  of  business  recommended  by  the  committee  on 
organization  and  order  of  business.  These  proceedings 
usually  cover  the  following  points: 

1.  The  temporary  officers  of  the  convention  are  made 
permanent,  or  other  persons  are  elected  as  permanent 
officers. 

2.  The  report  of  the  committee  on  credentials  is  con- 
sidered. 

3.  The  nomination  of  candidates  for  the  various  offices 
in  question  is  made.  If  it  is  the  purpose  of  the  convention 
to  appoint  delegates  to  a  higher  party  convention,  a  vote 
is  taken  on  a  list  of  such  delegates. 

4.  The  committee  on  resolutions  reports. 

5.  A  new  county  committee  is  appointed. 

6.  The  convention  adjourns. 


I 


THE  CITIZEN   IN  RELATION  TO  THE  GOVERNMENT   337 

In  conducting  a  county  convention,  as  in  conducting 
practically  all  other  public  meetings,  the  rules  of  procedure 
laid  down  in  parliamentary  law  are  observed. 

Topics. — Delegation  to  a  county  convention. — Procedure  of 
the  convention. — Order  of  business. 

References. — IMacy,  Political  Parties,  36;  Smith,  Training  for 
Citizenship,  256-266;  Dallinger,  Nominations  for  Elective  Office, 
Index. 

187.  The  Party  and  the  Government. — There  is  a  certain 
similarity  between  the  organization  of  a  party  and  the 
organization  of  a  republican  government.  Both  have  their 
primary,  secondary,  and  supreme  assemblies.  The  local, 
county.  State,  and  national  committees  may  be  likened  to 
the  small  bodies  of  executive  officers  in  the  town,  the  county, 
the  State,  and  the  national  Government.  A  noteworthy 
difference  between  the  party  organization  and  the  Govern- 
ment organization  is  seen  in  the  fact  that  the  action  of  the 
Government  officers  or  assemblies  is  binding  on  all  persons 
within  their  respective  jurisdictions;  while  the  action  of  the 
party  committees  or  assemblies  binds  no  one  legally.  The 
purpose  of  the  party  is  to  put  persons  into  the  offices  of 
the  Government  who  will  carry  out  the  policy  of  the  party. 
The  purpose  of  the  Government  is,  in  theory,  to  carry 
out  that  policy  which  will  bring  to  the  communities  subject 
to  its  jurisdiction  the  maximum  of  advantage;  in  practice, 
it  is  to  carry  out  the  wishes  of  the  dominant  party.  At 
this  point  the  party  becomes  merged  in  the  Government. 
Thus  we  see  that  the  real  design  of  the  party  is  to  put  some 
of  its  members  into  the  offices  of  the  Government,  and 
through  them  to  make  its  policy  the  policy  of  the  Govern- 
ment. 

Topics. — Similarity  of  party  and  Government  organizations. — 
Difference  of  power. — Purpose  of  party  and  purpose  of  Government. 
— Party  merged  in  the  Government. 


338      THE   GOVERNMENT   OF   THE   UNITED  STATES 

References. — Macy,  Political  Parties,  1-73;  Dallinger,  Nomi- 
nations for  Elective  Office;  Ford,  The  Rise  and  Growth  of  American 
Politics,  90-lOG,  Index. 

i88.  Party  Organization  in  a  State. — At  the  head  of  the 
party  organization  in  a  State  stands  the  State  central  com- 
mittee, which  is  formed  by  different  methods  in  different 
States.  In  Massachusetts  it  consists  of  one  member  from 
each  senatorial  district.  In  New  York  the  Democratic  State 
committee  is  chosen  by  the  State  convention.  In  many 
States  the  members  of  the  State  committee  are  elected  by 
the  county  conventions.  The  State  committee  exercises 
general  control  over  the  party  affairs  of  the  State.  It  calls 
the  State  convention  of  the  party,  and  at  the  same  time 
names  the  time  and  place  of  the  meeting.  The  first  State 
convention  of  New  York  was  called  in  1824.  In  fixing  the 
membership  of  this  convention,  it  was  provided  that  each 
county  should  send  as  many  delegates  as  it  had  members 
in  the  legislature.  Prior  to  calling  this  convention,  the 
State  officers  had  been  nominated  by  a  State  legislative 
caucus.  This,  however,  had  encountered  an  opposition 
similar  to  that  directed  against  the  congressional  caucus, 
and  both  were  overthrown  about  the  same  time.  The  last 
legislative  caucus  in  New  York  was  held  in  1824.  After  the 
convention  system  of  nomination  was  inaugurated  in  New 
York,  the  legislative  caucus  continued  to  nominate  the 
party  candidates  for  the  United  States  Senate.  In  the  other 
States  there  was  effected  essentially  the  same  transition 
from  the  legislative  caucus  to  the  State  convention  as  in 
New  York. 

Different  methods  are  employed  in  different  States  in 
appointing  delegates  to  State  conventions.  The  State  con- 
vention is  usually  called  to  order  by  the  chairman  of  the 
State  committee,  who  acts  as  temporary  chairman  of  the 
convention.     The  secretary  of  the  State  committee,  acting 


THE  CITIZEN   IN   RELATION  TO  THE  GOVERNMENT   339 

as  temporary  secretary  of  the  convention,  reads  the  call 
for  the  convention.  On  motion  by  some  member  of  the 
convention  who  has  been  previously  agreed  upon,  the  chair- 
man appoints  committees  on  credentials,  on  permanent 
organization,  and  on  resolutions.  The  speech  of  the  per- 
manent chairman  is  expected  to  be  the  opening  of  the  State 
campaign.  The  "  platform  "  is  read  by  the  chairman  of  the 
committee  on  resolutions.  One  section  or  "  plank  "  usually 
condemns  or  commends  the  national  administration.  The 
commendation  will  naturally  come  from  the  convention  of 
the  party  in  power,  while  the  convention  of  the  opposite 
party  will  quite  as  naturally  find  grounds  for  condemnation. 
Then  follow  the  balloting  for  candidates,  and  the  idle 
motions  by  the  friends  of  the  defeated  candidates  to  make 
the  nominations  unanimous. 

The  business  of  the  State  convention  differs  from  that 
of  the  national  convention  in  that  it  usually  includes  the 
nomination  of  a  larger  number  of  candidates,  owing  to  the 
fact  that  the  national  judicial  and  administrative  officers  are 
almost  all  appointed,  while  many  of  such  officers  in  the 
States  are  elected. 

Topics. — State  central  committee. — Legislative  caucus. — Tran- 
sition to  convention.— Prooodure  of  State  convention. — Difference 
in  the  Ijusinoss  of  the  State  and  national  conventions. 

References. — Dallinger,  Nominations  for  Elective  Office,  74- 
90;  Ford,  The  Rise  and  Growth  of  American  Politics,  72-325;  Macy, 
Political  Parties,  57-73. 

189.  The  National  Convention. — Several  of  the  early 
nominations  for  the  presidency  were  made  by  the  congres- 
sional caucus.  This  was  a  meeting  of  the  members  of  the 
two  houses  of  Congress  belonging  to  one  political  party. 
Such  a  caucus  was  held  in  1800.  From  1S04  to  1824  meet- 
ings of  this  kind  were  the  recognized  agencies  for  making 
presidential  nominations.     They  met,   however,   vigorous 


340      THE   GOVERNMENT  OF  THE   UNITED   STATES 

opposition.  They  were  regarded  as  oligarchical,  and  as 
placing  in  the  hands  of  party  representatives  functions  that 
should  be  exercised  by  the  whole  body  of  the  party. 

With  the  fall  of  the  congressional  caucus  the  State 
legislatures  in  their  official  capacity  made  nominations  for 
the  presidency.  But  this  method  was  neither  popular  nor 
long  continued.  Then  appeared  a  joint  caucus  of  the  party 
members  of  the  two  branches  of  the  State  legislature. 
But  this  was  only  a  makeshift,  one  of  several  methods  tried 
in  the  transition  from  the  congressional  caucus  to  the 
national  convention,  all  of  which  were  unsatisfactory  and 
emphasized  the  need  of  a  national  system  of  nomination. 

The  first  call  for  a  national  nominating  convention  was 
issued  in  1830.  In  obedience  to  this  call  delegates  met  in 
Baltimore  in  September,  1831.  During  the  next  few  years 
the  method  of  nomination  by  national  convention  was  fully 
established.  The  call  for  such  a  convention  is  now  issued 
by  the  national  committee,  a  body  representing  the  national 
interests  of  the  party,  the  members  of  which  are  chosen  by 
each  national  convention  and  hold  their  positions  for  four 
years.  It  is  the  highest  of  the  several  grades  of  committees 
which  embrace  national.  State,  district,  county,  and  local 
committees.  The  delegates,  or  members  of  the  convention, 
are  chosen,  two  for  each  congressional  district,  and  four  at 
large  by  the  State  convention  of  the  party.  In  the  Demo- 
cratic Party  the  choice  of  all  the  delegates  is  still  made  in 
some  instances  by  the  State  party  convention.  There  are 
two  steps  in  the  process  of  choosing  the  delegates  by  con- 
gressional districts:  (1)  The  voters  in  the  various  cities  and 
towns  choose  delegates  to  conventions  for  each  of  the  con- 
gressional districts;  (2)  each  district  convention  elects  two 
delegates  to  the  national  convention,  the  State  convention 
choosing  the  four  delegates  at  large. 

As  soon  as  the  delegates  to  the  national  convention 
are  chosen,  efforts  are  made  to  have  them  pledged  for  cer- 


THE  CITIZEN  IN  RELATION  TO  THE  GOVERNMENT   341 

tain  proposed  candidates.  At  the  convention  city,  a  local 
committee,  through  its  various  subcommittees,  has  made 
arrangements  concerning  a  hall  for  the  meetings,  hotels, 
transportation,  music,  telegraphing,  the  press,  the  reception, 
entertainment,  and  whatever  else  may  be  necessary  for  the 
accommodation  of  members  or  for  facilitating  the  work  of 
the  convention.  The  national  committee  has  arranged  the 
programme.  At  the  appointed  time  a  temporary  chair- 
man calls  the  convention  to  order;  the  rules  of  the  preced- 
ing convention  are  adopted;  committees  are  appointed  on 
credentials,  on  permanent  organization,  on  rules,  and  on 
resolutions.  The  report  of  the  committee  on  credentials, 
when  made,  determines  who  are  entitled  to  seats  in  the 
convention.  This  point  being  established,  the  permanent 
chairman  takes  the  chair  and  makes  a  carefully  prepared 
speech.  While  waiting  for  the  report  of  the  committee  on 
resolutions,  the  miscellaneous  business  of  the  convention  is 
transacted,  after  which  the  "platform"  is  read.  This  was 
at  first  called  "  Address  to  the  People  of  the  United  States." 
Following  this,  an  opportunity  is  given,  by  calling  the  roll 
of  the  States,  for  the  several  delegations  to  present  their 
candidates.  Here  follow  the  nominating  speeches,  scenes 
from  pandemonium,  or  displays  of  extemporized  enthusi- 
asm for  the  nominees,  the  selection  of  the  presidential  can- 
didate, and  finall}' ,  generally  in  an  anticlimax  of  enthusiasm, 
the  nomination  of  the  candidate  for  Vice-President.  The 
convention  then,  by  vote,  empowers  the  national  committee 
to  fix  time  and  place  for  the  next  national  convention,  orders 
the  printing  of  its  proceedings,  thanks  the  citizens  of  the 
city  for  their  hospitality,  and  adjourns. 

Topics. — Congressional   caucus. — Transition   to   national   con- 
vention.— National  committee. — Procedure  of  the  convention. 

References. — Dallinger,  Nominations  for  Elcdive  Office,  13-87; 
See  the  Proceedings  of  the  various  national  conventions. 


342      THE   GOVERNMENT  OF   THE   UNITED  STATES 

190.  The  Campaign. — A  convention  held  by  the  other 
party  also  nominates  candidates  for  the  same  offices.  Then 
follows  the  struggle  of  each  party  to  secure  a  sufficient 
number  of  votes  to  elect  its  candidates.  The  two  parties 
through  their  organizations  do  whatever  is  possible  to 
advance  the  interests  of  their  respective  candidates;  but 
the  candidates  themselves  are  expected  to  look  after  their 
own  interests  and  get  votes  for  themselves  by  the  use  of 
any  or  all  of  the  means  known  to  the  art  of  politics.  This 
contest  is  known  as  a  political  campaign.  The  political 
convention  held  in  the  county,  and  the  campaign  which 
follows  it,  are  types  of  the  conventions  and  the  campaigns 
which  are  employed  for  the  nomination  and  election  of 
State  and  national  officers.  But  money  is  required  to 
carry  on  even  a  peaceful  campaign;  and  in  order  to  meet 
the  necessary  expenses,  the  candidates  are  expected  to 
make  liberal  contributions.  Some  candidates  are  able  to 
do  this  without  inconvenience,  but  others  find  it  burden- 
some. Property  may,  perhaps,  have  to  be  mortgaged. 
Once  in  office  with  a  low  salary,  there  appear  temptations 
to  accept  illegitimate  gains  to  compensate  for  the  expenses 
of  election.  After  a  period  the  shifting  will  of  the  people 
causes  the  elected  officer  to  be  superseded;  and  he  returns 
to  private  life,  sometimes  to  find  that  his  neglect  of  his 
business  or  his  profession  has  rendered  it  necessary  to  make 
a  new  beginning. 

When  the  time  set  for  ending  the  voting  has  been 
reached,  the  proper  officers  count  the  votes  that  have  been 
cast  and  record  the  result.  Where  one  party  is  much  more 
numerous  than  the  opposition,  no  difficulties  are  likely  to 
arise.  But  when  the  two  parties  are  of  nearly  equal  strength, 
the  candidate  who  is  reported  as  defeated  may  think  it 
worth  the  while  to  question  the  report.  Recognizing  that  a 
slight  error  discovered  in  the  counting  might  change  the 
decision^  he  demands  a  recount,    In  such  a  case  the  ballots 


THE  CITIZEN   IN  RELATION  TO  THE  GOVERNMENT   343 

are  collected  from  all  the  precincts  of  his  district  and  care- 
fully inspected  and  recounted  under  such  guarantees  of 
honesty  and  accuracy  as  the  Government  may  provide. 
The  board  of  canvassers  who  act  in  this  case  may  make  a 
report,  ])ut  cither  candidate  may  appeal  to  the  courts.  In 
case  the  election  is  for  a  member  of  a  legislative  body,  it 
remains  with  that  body  to  consider  the  contested  election 
and  to  render  a  final  decision. 

Topics. ^ — A  political  campaign. — Contributions  to  campaign 
expenses. — Counting  the  vote. — Contested  elections. 

References.— Smith,  Training  for  Citizenship,  §§  255,  2G8. 

191.  Acquiring  Government  Land. — If  a  citizen  wishes 
to  acquire  land  owned  by  the  United  States,  he  finds  that 
this  may  be  done  under  the  Homestead  Laws,  under  the 
Preemption  Laws,  or  under  the  Timber  Culture  Act. 

1.  Under  the  Homestead  Laws,  if  he  is  twenty-one  years 
old,  he  may  claim  160  acres  of  the  unsold  land  of  the  United 
States,  provided  he  is  not  already  the  owner  of  this  amount 
of  land  in  any  State  or  Territory.  Before  he  can  acquire 
a  title  to  the  land  he  must  enter  it  in  the  proper  land  office, 
live  on  it  continuously  for  five  years,  and  pay  the  charges  of 
the  land  office. 

2.  Under  the  Preemption  Laws,  if  he  does  not  already 
own  320  acres,  he  may  settle  upon  a  tract  of  IGO  acres  or 
less.  Having  built  a  house  on  the  land,  and  lived  on  it 
for  one  year,  he  may  purchase  it  for  cither  $2.50  or  $1.25 
per  acre.  The  larger  price  is  for  land  in  the  alternate 
sections  along  railroads  where  the  other  sections  have  been 
granted  to  the  railroads. 

3.  Under  the  Timber  Culture  Act,  he  may  have  the 
right  to  160  acres  of  land  valued  at  $1.25  per  acre  if  he  will 
plant  ten  acres  of  timber,  or  eighty  acres  at  $2.50  per  acre 
if  he  will  plant  five  acres  of  tiinl)or. 


344      THE   GOVERNMENT   OF  THE   UNITED  STATES 

Topics.— Methods  of  acquiring  Government  land:  1.  Homestead 
Laws;  2.  Preemption  Laws;  3.  Timber  Culture  Act. 

References. — Hart,  Actual  Government,  335-341;  Smith, 
Training  for  Citizenship,  §§  64-73;  Fiske,  Civil  Government,  81-88, 
263,  264. 

192.  Real  Property. — The  citizen  who  has  either  inherited 
property  or  accumulated  it  by  his  trade  or  profession  finds 
it  composed  of  two  kinds:  real  property  and  personal  prop- 
erty. Real  property  is  called  also  real  estate.  It  includes 
land  and  whatever  is  made  part  of  it  or  is  attached  to  it 
by  nature  or  man.  Trees,  water,  minerals,  houses,  and  all 
other  permanent  structures  are  embraced  in  real  property. 
Water  that  rises  outside  the  limits  of  one's  land  and  flows 
in  a  stream  through  it  is  not  the  property  of  the  owner  of  the 
land.  He  may  use  it  to  turn  a  mill  as  it  flows  along,  but 
he  may  not  exhaust  the  stream.  Persons  who  own  land 
on  the  stream  below  have  also  a  right  to  use  the  water. 

Ownership  of  the  soil  carries  with  it  the  right  to  take 
the  wild  animals  or  game  found  on  the  land,  subject  to 
whatever  regulations  the  Government  may  make  as  to  the 
time  when  the  killing  of  game  is  permitted. 

In  speaking  of  the  ownership  of  land  in  the  United  States, 
we  usually  mean  that  full  ownership  presumed  in  the  title  of 
fee  simple — a  title  which  confers  an  unrestricted  power  of 
alienation.  Land  held  under  this  title  passes  to  one's  heirs 
like  any  other  property.  Besides  this  absolute  ownership, 
land  is  sometimes  held  for  brief  periods  in  consideration  of 
paying  a  certain  annual  rent,  sometimes  for  the  period  of 
one's  life,  and  sometimes  for  a  long  definite  period,  as  for 
ninety-nine  years. 

In  some  of  the  States  a  distinction  is  made  between 
property  acquired  before  marriage  and  property  acquired 
after  marriage.  Property  acquired  before  marriage  is 
called  separate  property;    that  acquired  after  marriage  is 


THE  CITIZEN   IN   RELATION  TO  THE  GOVERNMENT   345 

called  community  property.  Community  property  em- 
braces all  property  acquired  by  the  husband,  wife,  and 
children  while  living  together  after  marriage. 

In  transferring  real  property  a  deed  is  given  by  the  seller 
to  the  buyer.  A  deed  is  a  document  describing  the  property 
in  question  and  certifying  that  it  is  transferred  from  one 
person  to  another,  both  of  whom  are  named  in  the  document. 
After  a  deed  has  been  properly  signed,  not  only  by  the  seller, 
but  also  by  his  wife,  in  case  he  is  married,  it  is  recorded  in 
books  kept  for  that  purpose  in  the  office  of  the  recorder. 

Sometimes  the  owner  of  land  needs  money,  but  does  not 
wish  to  sell  his  land.  In  this  case  he  borrows  money  and 
pledges  his  land  or  some  part  of  it  as  security.  He  does 
this  by  giving  to  his  creditor  a  note  and  a  mortgage.  A 
mortgage  is  a  document  by  which  property  is  conveyed  as 
security,  under  the  condition  that  it  shall  become  void  on 
the  payment  of  the  debt  thus  secured.  It  accompanies  the 
note  which  contains  the  promise  to  pay.  If  the  money 
borrowed  and  the  interest  agreed  upon  are  not  paid  at  the 
time  specified,  the  creditor  may  foreclose  the  mortgage. 
Under  this  process  the  land  is  sold  and  the  debt  is  paid 
from  the  proceeds  of  the  sale.  If  the  proceeds  of  the  sale 
are  not  sufficient  to  pay  the  debt,  the  creditor  has  still  a 
claim  on  the  debtor.  If  by  the  sale  more  is  received  than 
is  required  to  pay  the  debt,  the  excess  goes  to  the  debtor. 

It  may  happen,  however,  that  the  person  giving  his  note, 

or  promise  to  pay,  either  for  money  borrowed  or  for  goods 

received,  may  not  wish  to  convey  his  property  under  a 

mortgage  as  security.     In  that  case  he  may  seek  to  secure 

his  note  in  some  other  manner.     He  may,  perhaps,  find  a 

person  who  is  known  to  have  a  sufficient  amount  of  property, 

and  who  may  be  willing  to  guarantee  that  the  note  will  be 

paid.     This  person  is  said  to  indorse  the  note.     He  writes 

his  name  on  the  back  of  it,  or  sometimes  under  the  name  of 

the  person  who  signed  it  originally.     By  thus  indorsing  it, 
23 


346      THE   GOVERNMENT   OF  THE   UNITED  STATES 

he  promises  to  pay  it  if  the  debtor  fails  to  do  so.  The 
creditor  may  be  willing  to  accept  a  note  thus  indorsed 
instead  of  a  mortgage. 

Such  a  note,  or  a  written  promise  to  pay,  is  called  a 
promissory  note;  and,  when  indorsed,  it  carries  two  prom- 
ises: that  of  the  original  signer  and  that  of  the  indorser. 
The  person  who  gives  his  note  gives  it  as  a  promise  to  pay 
money  he  has  borrowed,  or  to  pay  for  valuable  goods 
he  has  received.  In  either  case  he  has  in  his  possession 
property  that  he  may  use  for  gain.  Because  he  can  employ 
it  for  gain,  he  can  afford  to  pay  the  creditor  a  certain  amount 
for  the  use  of  it.  What  he  pays  in  this  case  from  month  to 
month  or  from  year  to  year  for  the  use  of  the  money  bor- 
rowed or  the  goods  received  is  the  interest.  He  can  afford 
to  pay  it,  because  by  using  the  money  or  the  goods  he  can 
gain  more  than  he  pays.  The  creditor  is  willing  to  accept 
the  interest  rather  than  to  have  his  money  and  use  it  in  any 
other  practical  way,  because  he  is  spared  the  trouble  of 
business. 

Topics. — Two  kinds  of  property. — Water  rights. — Game.^ 
Forms  of  title. — Separate  property  and  community  property.-^ 
Transfer  of  real  property. — Mortgage  and  foreclosure. — Indorse 
ments. — Reason  of  interest. 

References. — Kent,  Commentaries,  ii,  230,  325-340;  iii,  401; 
37-39;  iv,  438;  Smith,  Training  far  Citizenship,  §§  124-136,  247. 

193.  Personal  Property. — Personal  property  includes  a 
long  list  of  objects:  clothing,  food,  tools,  books,  furniture, 
money,  and  all  kinds  of  valuable  things  not  embraced  under 
the  designation  of  real  property.  Personal  property  is 
sometimes  called  movable  property,  because  the  owner 
may  take  it  with  him.  Speaking  generally,  the  title  to  real 
property  is  shown  by  deed  or  by  the  public  record,  while 
the  title  to  personal  property  is  shown  by  possession.  It 
is,  however,  sometimes  possible  for  one  to  prove  that  he  is 


THE  CITIZEN  IN   RELATION  TO  THE  GOVERNMENT   347 

the  owner  of  a  certain  object  which  is  in  the  possession  of 
another  person;  and  it  might  be  possible  to  show  ownership 
in  a  piece  of  land,  although  all  records  of  its  transfer  had 
been  destroyed. 

Topics.— Definition  of  personal  property. — Title  to  personal 
property. 

References. — Smith,  Training  for  Citizenship,  §§  38,  39,  114, 
125,  137,  138,  139,  169;  Kent,  Commentaries,  ii,  3-16,  499;  Hart, 
Actual  Government,  385-392,  409,  410. 

194.  Transfer  of  Property  by  Lease. — All  property  of 
whatsoever  kind  may  be  transferred  from  one  person  to 
another  in  various  ways.  It  may  be  given  away  or,  on  the 
death  of  the  owner,  pass  to  heirs  under  the  law  of  inherit- 
ance.    It  may  be  sold,  or  it  may  be  leased. 

A  lease,  as  applied  to  land,  is  a  contract  by  which  the 
possession  and  profits  of  real  estate  for  a  definite  period  are 
passed  from  one  person  to  another.  The  person  who  re- 
ceives the  property  for  the  term  specified  makes  compensa- 
tion to  the  owner  in  either  money  or  services,  or  in  com- 
modities. Leases  are  made  for  short  periods  or  long  periods, 
or  during  the  life  of  the  tenant.  The  person  who  has  re- 
ceived the  property  is  called  the  tenant,  or  lessee.  Unless 
there  is  something  in  the  agreement  with  the  owner  prevent- 
ing it,  the  tenant,  or  lessee,  may  sublet  the  whole  or  a  part 
of  the  property  that  has  been  transferred  to  him;  but  the 
term  for  which  he  sublets  it  must  not  be  extended  beyond 
the  end  of  the  period  for  which  he  has  received  it.  If  a 
person  holding  property  under  a  lease  for  a  number  of  years 
— say,  for  ten  years — sublets  it  for  twenty  years,  this  lease 
is  not  valid  for  the  whole  period,  but  only  for  ten  years. 
Sometimes  a  lease  is  made  for  a  definite  number  of  years, 
and  the  lessee,  by  an  agreement  with  the  lessor,  acquires  the 
privilege  of  renewal.  Thus,  to  illustrate,  the  lessee  may 
hold  a  lea.se  for  a  period  of  five  years;   and  included  in  the 


348      THE   GOVERNMENT   OF  THE  UNITED  STATES 

terms  of  the  lease  there  may  be  a  provision  that  he  shall  have 
the  privilege  of  renewing  the  lease  at  the  expiration  of  the 
first  period. 

Topics. — Methods  of  transferring  property. — Lease. — Terms  of 
leases. — Subletting. — Renewal. 

195.  Contract  of  Sale. — A  sale  is  a  contract  for  the 
transfer  of  the  ownership  of  property,  or  for  the  transfer  of 
the  right  of  property  in  a  commodity,  for  a  price  to  be  paid 
in  money.  When  the  valuable  thing  given  for  the  com- 
modity is  not  money  but  some  other  commodity,  we  call  the 
transaction  barter.  But  a  sale  in  its  broadest  sense  includes 
both  sale  and  barter  as  here  defined.  The  thing  sold  must 
be  capable  of  being  passed  from  the  exclusive  possession 
of  one  person  to  the  exclusive  possession  of  another  person. 
If  at  the  time  of  the  agreement  the  property  which  it  is 
proposed  to  transfer  has  been  destroyed  without  the  knowl- 
edge of  either  of  the  parties,  it  is  to  be  considered  that  no 
sale  has  been  effected. 

The  thing  sold  need  not  necessarily  be  a  material  object: 
it  may  be  immaterial  property,  like  the  relation  of  a  business 
to  the  public;  for  example,  the  relation  of  a  newspaper  to 
its  patrons — its  subscribers  and  advertisers.  A  contract  of 
sale  becomes  binding  by  the  mutual  consent  of  both  parties 
to  it;  that  is,  when  both  parties  have  agreed  to  its  terms. 
If  one  person  makes  an  offer  of  an  article  or  a  certain  piece 
of  property  to  another  person  for  a  stated  price,  there  is 
no  contract  until  the  second  person  shall  have  accepted  the 
offer.     By  this  acceptance  the  contract  is  completed. 

When  the  parties  have  agreed  on  the  terms  of  the  sale, 
the  right  of  property  passes  from  the  seller  to  the  buyer. 
The  sign  or  evidence  that  such  an  agreement  has  been 
reached  is  sometimes  the  delivery  and  acceptance  of  the 
article  sold,  and  sometimes  the  delivery  and  acceptance  of 
papers  that  represent  the  property  transferred.     It  is  easy 


THE  CITIZEN  IX   RELATION   TO  THE  GOVERNMENT   349 

for  the  seller  to  deliver  into  the  hands  of  the  buyer  a  pair  of 
shoes;  but  it  is  not  so  easy  to  deliver  in  the  same  way  an 
ocean  steamship  or  a  thousand  acres  of  land.  It  is  in  such 
cases  as  these  latter  that  papers  recording  the  fact  of  the 
sale  are  transferred.  In  the  case  of  a  sale  of  land,  a  paper 
called  a  deed  passes  from  the  seller  to  the  buyer. 

It  is  held  by  writers  on  morals  that  it  is  the  duty  of  the 
seller  to  disclose  any  defects  known  to  him  in  the  articles 
to  be  sold.  But  in  general  the  common  law  adopts  the 
attitude  toward  selling  and  buying  that  is  indicated  by 
the  phrase,  Caveat  emptor,  Let  the  buyer  beware.  If  the 
seller  "intentionally  misrepresents  a  material  fact,  or  pro- 
duces a  false  impression  by  words  or  acts,  in  order  to  mis- 
lead, or  to  obtain  an  undue  advantage,  it  is  a  case  of  mani- 
fest fraud  ";^  and  the  common  law  affords  a  reasonable 
protection  against  fraud  in  dealing. 

Topics. — Definition  of  sale. — What  transferred. — Evidence  of 
sale. — Caveat  emptor. 

196.  Gifts  and  Bequests. — Property  may  be  transferred 
from  one  person  to  another  not  only  by  lease  or  sale,  but 
also  by  gift  or  bequest.  By  gift,  property  is  conveyed 
by  the  owner  to  another  person  without  compensation.  A 
gift  becomes  valid  on  the  delivery  of  the  object  which  it  is 
proposed  to  transfer.  A  mere  promise  to  give  is  not  giving; 
there  must  be  an  actual  delivery  of  the  object,  or  a  transfer 
of  papers  recording  the  act  of  donation.  At  any  time  prior 
to  the  delivery  or  transfer,  the  owner  may  change  his  in- 
tention and  refuse  to  complete  the  gift.  A  gift,  like  a  con- 
veyance made  for  a  consideration,  may  be  annulled  if  it  can 
be  shown  that  the  donor  was  subject  to  undue  influence  at 
the  time  of  making  the  donation.  When  gifts  have  been 
made  complying  with  the  conditions  necessary  for  the  per- 
fected  transaction,   they   are   generally   irrevocable.     But 

'  Kent,  Commentaries,  ii,  484. 


350      THE   GOVERNMENT   OF   THE   UNITED   STATES 

when  they  are  made  for  the  purpose  of  defrauding  creditors, 
they  are  void  and  may  be  set  aside.  However,  it  is  often 
difficult  to  prove  that  a  donor  in  making  a  gift  intended  to 
commit  fraud;  yet  when  he  knows  that  the  sum  of  his  debts 
is  greater  than  the  value  of  his  property,  it  is  safe  to  con- 
clude that,  if  he  makes  large  gifts,  they  are  made  with 
fraudulent  intent. 

Besides  gifts  from  living  persons  to  living  persons,  gifts 
or  bequests  may  be  made  by  a  last  will  and  testament  to 
take  effect  after  the  death  of  the  testator.  This  document, 
signed  by  the  testator,  provides  directions  for  a  distribution 
of  his  real  and  personal  property  after  his  death,  and  in- 
dicates the  amount  to  be  received  by  each  of  the  designated 
persons. 

Topics. — Nature  of  a  gift. — Gift  when  valid. — Gifts  for  defraud- 
ing creditors. — Bequests. 

197.  Governmental  Protection. — In  seeking  to  protect 
his  person  and  his  property  the  individual  citizen  turns  for 
assistance  to  the  Government.  The  assistance  in  such  a 
case  is  given  by  the  courts.  If  his  property  is  stolen,  the 
courts  will  condemn  the  thief  to  be  punished.  If  he  sells 
goods  or  loans  money,  and  the  debtor  refuses  to  pay  him  at 
the  appointed  time,  the  courts  will  assist  the  creditor  in 
collecting  what  is  due  him.  If  his  person  or  his  reputation 
is  injured  by  an  enemy,  he  turns  to  the  courts  for  redress. 
The  law,  however,  does  not  oblige  one  to  do  all  those  things 
he  ought  to  do.  If  a  man  makes  an  oral  contract  to  sell  a 
piece  of  land,  or  to  pay  the  debt  of  another  person,  or  to 
purchase  a  large  amount  of  personal  property,  an  amount 
valued  at  more  than  $50,  he  is  morally  bound  to  keep  his 
promise,  but  the  Government  will  not  compel  him  to  do  it. 
As  the  law  usually  requires  that  all  such  contracts  shall  be 
in  writing  in  order  to  be  legally  binding,  the  courts  will  not 
enforce  contracts  made  orally  relating  to  those  things. 


THE  CITIZEN   IN  RELATION  TO  THE  GOVERNMENT    351 

Topics. — Recourse  of  the  individual  citizen  for  protection. — 
Moral  and  legal  obligations. 

References. — Kent,  Commentaries,  n,  3-16;  i,  107,  254. 

198.  A  Civil  Case. — Civil  cases  arise  generally  out  of 
disputes  about  property.  They  embrace  all  actions  at  law 
between  persons  in  their  private  capacity,  not  involving 
prosecution  for  crime.  They  are  brought  to  enforce  the 
payment  of  debts,  to  collect  compensation  for  injury  to 
one's  character,  person,  property,  or  reputation,  or  to  set- 
tle questions  relating  to  the  ownership  of  property.  Civil 
cases  not  involving  debt  or  damage  in  excess  of  $100  are 
usually  tried  in  the  justice's  court.  Where  the  amount 
involved  is  between  $100  and  $300,  the  plaintiff — that  is, 
the  person  who  brings  the  suit — may  begin  the  case  before 
the  justice's  court  or  before  the  higher  court.  The  case 
having  been  instituted,  the  justice  causes  the  defendant, 
the  person  against  whom  the  suit  is  brought,  to  be  summoned 
to  appear  in  the  court  at  a  time  mentioned  in  the  summons, 
in  order  to  answer  the  suit  introduced  by  the  plaintiff.  If 
the  defendant  does  not  appear  in  accordance  with  the  sum- 
mons, the  judgment  will  be  rendered  against  him. 

In  order  that  the  justice  may  have  the  necessary  infor- 
mation on  which  to  base  a  decision,  it  is  usually  necessary 
to  bring  witnesses  into  court  to  testify,  or  to  furnish  the 
required  information.  Under  such  circumstances  an  order 
is  issued,  signed  by  the  justice,  commanding  the  person 
named  to  appear  in  court  at  the  time  specified.  This  order 
is  called  a  subpcena.  The  person  to  whom  it  is  directed  is 
obliged  to  obey  it  or  be  jounished  for  contempt  by  the  court. 
The  trial  proceeds  cither  before  the  justice  alone  or  before 
the  justice  and  a  jury.  The  plaintiff,  assisted  by  his  wit- 
nesses and  his  lawyer  or  lawyers,  presents  the  facts  and  argu- 
ments which  seem  to  support  his  contention.  Answer  is  then 
made  in  substantially  the  same  manner  by  the  defendant. 


352      THE   GOVERNMENT   OF  THE  UNITED   STATES 

When  there  is  a  jury  in  the  lower  court  it  renders  its 
verdict  with  respect  to  both  the  law  and  the  facts.  In  the 
higher  court,  the  judge  charges  the  jury — that  is  to  say, 
he  states  the  law  applicable  to  the  case — and  impresses  upon 
the  jury  its  obligation  to  decide,  from  the  evidence  pre- 
sented by  the  witnesses,  what  are  the  facts  in  the  case. 
When  the  jviry  of  the  higher  court  has  reached  a  conclusion, 
it  delivers  it  to  the  judge.  This  conclusion  or  opinion  of 
the  jury  is  called  its  verdict.  On  the  basis  of  this  verdict 
the  judge  renders  his  judgment.  When  there  is  no  jury,i  the 
decision  is  given  by  the  justice  on  his  own  view  of  the  law 
and  the  facts  as  presented. 

When  the  defeated  party  is  dissatisfied  with  the  judg- 
ment and  believes  that  a  new  trial  would  give  a  different 
result,  he  appeals  to  a  higher  court.  Before  this  higher 
court,  at  an  appointed  time,  the  case  is  tried  again  in 
essentially  the  same  way  as  in  the  court  where  it  was  first 
presented.  When  a  final  judgment  has  been  reached,  the 
next  step  is  to  secure  its  execution.  If  the  judgment  is 
that  money  shall  be  paid  by  the  defendant  to  the  plaintiff, 
the  defendant  is  ordered  to  pay  the  amount  specified.  If 
this  is  not  done,  an  officer  of  the  court  is  commanded  to 
seize  property  belonging  to  the  defendant,  sell  it,  and 
bring  the  money  to  the  justice  within  a  specified  number  of 
days.  The  justice  then  pays  the  plaintiff  and  the  legal 
charges  of  the  court,  or  the  costs,  and  turns  over  the  balance 
to  the  defendant.  In  case  an  appeal  is  taken,  an  execution 
follows  only  after  the  conclusion  of  the  final  trial  and  the 
rendering  of  the  final  judgment  by  the  court  to  which  the 
case  has  been  appealed. 

Topics. — The  nature  of  civil  cases. — The  method  of  insti- 
tuting them. — Witnesses  and  the  subpoena. — The  jury. — An 
appeal. — The  judgment  and  the  execution. 

1  See  I  200, 


THE  CITIZEN  IN   RELATION  TO  THE   GOVERNMENT   353 

199.  Crimes. — The  acts  of  the  individual  citizen  are, 
with  few  exceptions,  voluntary  acts.  There  is  thus  always 
before  some  of  the  citizens  the  possibility  of  falling  into 
crime,  or  of  doing  something  forbidden  by  law.  If  a  citi- 
zen commits  an  offense  for  which  the  law  fixes  a  light 
penalty,  the  crime  is  called  a  misdemeanor.  Offenses  of  a 
graver  nature  involving  the  death  penalty  or  imprisonment 
are  called  felonies.  If  the  offender  aims  to  overthrow  the 
Government,  to  levy  war  against  it,  or  to  give  aid  and 
comfort  to  its  enemies,  the  crime  is  treason.  If,  having 
been  duly  summoned  to  testify  before  a  court,  a  person 
swears  willfully  and  falsely  in  a  matter  of  grave  importance, 
the  crime  thus  committed  is  perjury.  The  willful  killing 
of  a  human  being  is  murder;  but  there  are  circumstances 
under  which  the  killing  of  a  man  is  not  a  crime.  If  it  is 
done  by  accident,  or  by  a  person  not  of  sound  mind,  or  in 
self-defense,  the  act  wall  not  merit  punishment.  If  one  is 
guilty  of  burning  another  person's  dwelling  house,  or  other 
structure,  or  his  own  house  when  insured,  the  act  is  called 
arson. 

Topics. — A    misdemeanor. — Felony. — Treason. — Murder. — Ar- 
son. 

200.  A  Criminal  Case. — If  a  person  under  the  Govern- 
ment commits  a  crime,  it  is  expected  that  he  will  be  arrested 
and  brought  before  a  court  for  trial.  In  case  the  crime  is 
a  minor  offense,  a  misdemeanor,  he  may  be  tried  before 
a  justice  of  the  peace,  in  what  is  termed  a  justice's  court. 
But  if  the  crime  is  of  a  graver  sort  that  may  be  termed  a 
felony,  the  person  accused  is  arrested  and  brought  before  the 
justice  for  a  preliminary  examination.  If  the  justice  thinks 
the  person  arrested  is  guilty,  on  the  basis  of  the  evidence 
presented  in  the  preliminary  examination,  he  orders  him 
held  for  trial  by  a  higher  court.  The  prisoner  is  then  com- 
mitted to  the  county  jail  to  await  his  trial  in  the  county,  or 


354      THE   GOVERNMENT   OF   THE   UNITED   STATES 

superior,  court.  During  this  period  he  may  be  released 
from  the  confinement  of  the  jail,  provided  he  will  give  a 
bond  guaranteeing  his  appearance  at  the  time  set  for  his 
trial.  The  bond  must  be  signed  by  two  responsible  persons, 
who  are  bound  to  pay  the  amount  specified  in  the  bond, 
which  is  called  bail,  in  case  the  prisoner  fails  to  appear  at 
the  appointed  time.  The  arrest  is  made  under  a  warrant, 
or  order,  signed  by  a  justice,  directing  a  constable  or  other 
officer  to  make  the  arrest.  If  the  crime  for  which  the  person 
is  arrested  is  a  capital  offense,  like  murder,  and  there  is  a 
strong  probability  that  the  person  arrested  is  guilty,  bail  will 
not  be  accepted,  and  the  prisoner  will  be  held  in  jail  until  his 
trial.  At  the  time  set  in  the  bond,  the  prisoner  is  brought 
before  the  court  and  there  tried.  If  he  is  found  to  be  guilty, 
the  judge  orders  him  to  stand  up,  and  then  asks  him  if  he 
knows  any  reason  why  sentence  should  not  be  pronounced 
upon  him.  After  he  has  had  this  last  opportunity  to  answer, 
the  judge  tells  him  what  punishment  he  is  to  receive.  This 
is  called  his  sentence.  The  prisoner  thus  convicted  and  con- 
demned is  led  away  by  the  officers  to  undergo  the  punishment 
that  has  been  imposed  in  accordance  with  the  law. 

Topics. — Process  in  a  criminal  case. — Bail. — When  bail  will  not 
be  accepted. — The  sentence. 

201.  Public  Charity. — The  government  has  not  done  its 
whole  duty  to  the  citizens  when  it  has  taken  possession  of 
criminals  and  prevented  them  from  preying  upon  the  com- 
munity, or  upon  unoffending  members  of  it.  In  modern 
times  the  unfortunates,  those  who  fail  in  the  struggle  for 
existence,  are  taken  under  the  special  protection  of  the 
state.  In  this  class  are  the  hopelessly  poor,  and  the  helpless 
orphans;  also  the  insane,  the  feeble-minded,  and  other 
defectives  who  have  no  means  of  support. 

When  one's  efforts  have  failed,  and  his  strength  and 
courage  are  gone;  when  he  is  without  friends  or  relatives  who 


THE  CITIZEN  IN  RELATION  TO  THE  GOVERNMENT    355 

are  able  and  willing  to  support  him,  he  finds  that  the 
government  has  made  arrangements  under  which  he  may 
be  cared  for  at  the  public  expense.  These  arrangements 
are  made  sometimes  by  the  town  government,  sometimes 
by  the  county  government.  The  poorhouse  is  one  of  the 
established  institutions  of  the  New  England  town.  It  is 
under  the  general  control  of  three  or  more  overseers  of  the 
poor.  When  the  support  of  the  poor  is  undertaken  by 
the  county,  this  support  is  usually  rendered  under  the 
supervision  of  a  subordinate  county  board,  or  poor  com- 
mission. 

The  insane  are  usually  cared  for  in  larger  institutions 
supported  by  the  State,  and  carried  on  by  officers  appointed 
by  the  State  government.  The  need  of  employing  learned 
physicians  and  expert  attendants  makes  it  advisable  to 
gather  the  insane  persons  into  large  establishments  instead 
of  undertaking  to  treat  them  in  the  several  towns  where 
they  have  been  accustomed  to  reside.  Sometimes  the  ex- 
penses of  maintaining  the  patients  are  paid  by  the  towns 
sending  them;  in  other  cases  the  whole  expense  of  main- 
taining the  asylum  is  borne  by  the  State  at  large.  In  these 
instances  no  attempt  is  made  to  assign  the  cost  to  the  towns 
making  use  of  the  institution  for  the  care  and  treatment 
of  their  insane. 

Institutions  for  the  instruction  of  the  deaf,  dumb,  and 
blind,  when  established  and  supported  by  a  State,  are  to 
be  regarded  as  a  part  of  the  State's  undertaking  in  behalf 
of  education.  But  when  homes  arc  provided  at  the  pub- 
lic expense  for  the  mature  but  helpless  blind,  these  in- 
stitutions may  be  regarded  as  part  of  the  system  of  public 
charity. 

Topics. — Relation  of  the  State  to  the  helpless  and  the  de- 
fective.— The  support  of  the  poor. — The  insane. — The  deaf,  dumb, 
and  blind. 


356      THE   GOVERNMENT  OF  THE  UNITED  STATES 


FOR  ADVANCED  STUDY 

Suffrage. — Hinsdale,  American  Government,  Chap.  LIV;  Hart, 
Practical  Essays,  No.  11;  Wilcox,  Study  of  City  Government,  §§  61- 
72;  Foster,  Commentaries,  §§  50-59;  A.  de  Tocqueville,  Democracy 
in  America,  i.  Chaps.  IV,  XIII;  Political  Science  Quarterly,  13:  495- 
513;  Bryce,  American  Commonwealth,  i,  406,  712;  ii,  67,  477;  Chap. 
XCVI. 

Methods  of  Nomination  for  Elective  Office. — Bryce, 
American  Commonwealth,  ii.  Chaps.  LXIX-LXXIII;  Dallinger, 
Nominations  for  Elective  Office;  Wigmore,  Australian  Ballot  Sys- 
tem; Lawton,  Caucus  System;  Whitridge,  Caucus  System;  National 
Conference  for  Good  City  Government,  Proceedings,  1901. 

Elections. — O'Neil,  American  Electoral  System;  McKnight, 
Electoral  System;  Commons,  Proportional  Representation;  Eaton, 
Government  of  Municipalities,  Chaps.  II,  IX;  Giddings,  Democracy 
and  Empire,  Chaps.  XII,  XV;  Bryce,  American  Commonwealth,  ii, 
Chaps.  LXVI,  LXVII ;  Jennings,  Eighty  Years  of  Republican  Gov- 
ernment, Chaps.  VII,  VIII. 

Democracy. — Godkin;  Problems  of  Modern  Democracy,  1-98, 
199-225,  275-311;  Giddings,  Democracy  and  Empire,  Chaps.  I-VI, 
XV,  XVI;  Borgeaud,  Rise  of  Modern  Democracy;  Eliot,  American 
Contributions  to  Civilization,  Nos.  1-6;  Lowell,  Essays  on  Govern- 
ment, Nos.  2,  4;  Moses,  Democracy  and  Social  Growth;  Baldwin, 
Modern  Political  Institutions,  Chap.  II;  Jefferson,  Writings,  i, 
1-110;  American  History  Leaflets,  No.  18. 

The  Control  and  Disposal  of  the  Public  Lands. — Hins- 
dale, Old  Northwest,  Chap.  XIV;  American  History  Association, 
Papers,  i,  79-247;  v,  395-437;  iii,  411-432;  Johns  Hopkins  Uni- 
versity, Studies,  iv,  Nos.  7-9;  Hart,  Practical  Essays,  No.  10;  Com- 
missioner of  Public  Lands,  Annual  Reports;  Bureau  of  Forestry, 
Reports  and  Bulletins. 

Private  Ownership  of  Land  in  the  United  States. — 

Cooley,  Constitutional  Limitations,  Chap.  XV;  Washburn,  American 
Law  of  Real  Property;  Lewis,  Eminent  Domain;  Hopkins,  Real 
Property;  Eleventh  Census,  Extra  Bulletins,  No.  98. 


THE  CITIZEN   IX   RELATION  TO  THE  GOVERNMENT   357 

Political  Parties. — Macy,  Political  Parties;  Morse,  History 
of  Political  Parties;  Hammond,  Political  Parties  in  the  State  of 
New  York;  Ostrogorski,  Democracy  and  the  Organization  of  Political 
Parties;  Smith,  Liberty  and  Free-Soil  Parties;  Goodnow,  Politics 
and  Administration,  Chaps.  II,  III,  IX;  Bryce,  American  Co7n- 
monwealth,  ii.  Chaps.  LIII,  LIV;  Eaton,  Government  of  Municipali- 
ties, Chaps.  Ill,  IV;  Ford,  American  Politics,  Chaps.  VII,  XXIII- 
XXV. 


CHAPTER  XIV 

INTERNATIONAL    RELATIONS 

202.  Relation  of  the  United  States  to  Other  Independ- 
ent States.— Hitherto  attention   has  been  directed  to  the 
organization  of  the  governments  which  make  up  the  pohtical 
system  of  the  United  States.     Little  has  been  said  con- 
cerning the  relation  of  the  Government  of  the  United  States 
to  other  governments;    but  a  general  consideration  of  this 
subject  is  made  necessary  by  the  close  relations  now  existing 
between  civilized  nations.     Although  a  sovereign  state  is 
said  to  be  independent  and  to  recognize  no  superior,  it  is 
nevertheless  expected  to  regard  other  sovereign  states  as 
its  equals;  and  the  existence  of  a  nation  or  of  an  individual 
person   among  equals   imposes   certain   moral   obligations 
that  might  not  be  taken  account  of  in  complete  isolation. 
One  may  own  the  house  in  which  he  lives  and  the  lot  on 
which  it  stands,  but  he  is  morally  bound  to  show  in  his 
conduct   a  decent   regard    for   the   wishes   and    the   well- 
being  of  his  neighbor.     A  nation  that  finds  itself  in  the 
community  of  nations  also  is  morally  bound  to  show  a 
decent  regard  for  the  wishes  and  the  well-being  of  other 
nations.     For  regulating  the  intercourse  of  sovereign  states, 
a  body  of  rules  and  doctrine  has  gradually  come  into  exist- 
ence and  been  recognized  as  a  proper  guide  for  civilized 
nations  with  respect  to  such  actions  as  affect  one  another. 
This  body  of  rules  and  doctrine  is  known  as  international 
law,  although,  speaking  strictly,  it  is  not  law  at  all.     Law 
358 


INTERNATIONAL  RELATIONS  359 

in  the  proper  sense  of  the  word  is  "  a  rule  laid  down  for  the 
guidance  of  an  intelligent  being  by  an  intelligent  being  hav- 
ing power  over  him."  The  rules  which  make  up  the  body 
of  international  law  do  not  conform  to  this  definition;  they 
are  the  result  of  mutual  agreements  or  understandings  among 
the  nations,  rather  than  commands.  No  nation  is  in  a 
position  to  enforce  obedience  to  them,  yet  it  is  agreed  that 
such  obedience  tends  to  promote  the  general  well-being  and 
to  remove  international  friction.  They  have  been  called 
the  rules  of  international  morality;  and  what  they  enjoin, 
they  enjoin  as  a  duty. 

Topics. — Relation  of  Government  of  United  States  to  other 
governments. — Equality  of  sovereign  states. — Definition  of  law. — 
Nature  of  international  law. 

203.  Certain  Duties  Recognized  in  International  Re- 
lations.— Important  among  the  duties  recognized  in  inter- 
national relations  is  the  duty  of  humanity.  War  continues 
and  is  likely  to  continue  yet  many  decades;  still  the  fact 
of  war  between  two  nations  does  not  entitle  either  to  wreak 
vengeance  on  a  captured  member  of  the  other  nation.  War 
between  civilized  nations  is  not  a  war  against  individual 
persons,  and  such  persons  falling  into  the  hands  of  the  enemy 
of  their  nation  are  entitled  to  humane  treatment.  In  view 
of  the  mutual  dependence  of  nations  because  of  the  differ- 
ences of  their  soil,  climate,  and  products,  it  is  affirmed  that 
an  obligation  rests  upon  every  nation  to  enter  into  at  least 
commercial  relations  with  other  nations.  A  strong  nation 
is  likely  to  hold  this  to  be  the  duty  of  the  weaker  nations 
with  whom  it  wishes  to  trade,  particularly  if  these  nations 
stand  on  a  somewhat  lower  plane  of  cultivation.  Western 
nations  have  held  this  to  be  the  duty  of  certain  Oriental 
states.  In  her  attitude  toward  other  nations,  Japan  saw 
fit  to  pursue  a  policy  of  strict  non-intercourse  from  the 
beginning  of  the  seventeenth  to  the  middle  of  the  nineteenth 


360      THE  GOVERNMENT  OF  THE  UNITED  STATES 

century.  She  neither  exported  nor  imported  wares,  and 
permitted  neither  immigration  nor  emigration.  Western 
nations  insisted  on.  trading  with  her,  and  her  pohcy  was 
made  to  yield  to  their  wishes.  If  there  is  a  duty  under  which 
every  nation  hes,  that  obhges  it  to  enter  into  relations  with 
other  nations,  it  is  clearly  a  duty  that  admits  of  many  ex- 
ceptions. The  power  of  a  nation  to  establish  such  customs 
duties  as  will  practically  exclude  foreign  wares  does  not 
appear  to  be  seriously  questioned;  and  there  is  not  a  very 
wide  difference  between  this  policy  and  the  policy  of  com- 
plete commercial  isolation. 

It  is  understood  that  when  we  speak  of  international 
relations  we  have  in  mind  only  such  states  as,  by  common 
consent,  are  counted  as  independent.  Pirates  controlling 
a  large  territory  do  not  constitute  a  state.  The  common- 
wealth of  New  York,  from  the  point  of  view  of  international 
law,  does  not  appear  a  sovereign  state,  although  more 
populous  and  wealthier  than  many  sovereign  states:  it  is 
not  a  party  in  international  relations.  International  rela- 
tions exist  only  between  sovereign  states. 

Topics. — International  duty  of  humanity. — War  not  against 
individual  persons. — Is  there  a  duty  of  commercial  intercourse? — 
International  relations  between  sovereign  states  only. 

204.  Non-interference. — When  it  is  said  that  a  sovereign 
state  is  independent,  it  is  meant  thereby,  among  other  things, 
that  it  is  free  from  interference  by  other  states.  This  is 
the  general  rule,  but  there  are  justifiable  exceptions.  If  a 
state  is  at  war  with  another  state,  it  may  aid  any  party  or 
province  of  the  enemy  which  may  be  in  revolt.  When  its 
stability  and  the  well-being  of  the  people  are  vitally  affected 
by  lawlessness  permitted  by  its  sovereign  neighbor,  it  may 
insist  that  order  shall  be  preserved,  and  may  go  even  to  the 
extent  of  forceful  interference  in  behalf  of  self-preserva- 
tion. 


INTERNATIONAL  RELATIONS  361 

A  state  in  facing  a  serious  revolt  or  revolution  may  call 
on  a  foreign  state  for  assistance,  and  it  is  not  questioned 
that  the  foreign  state  in  rendering  the  required  assistance 
is  acting  strictly  within  the  limits  of  international  propriety. 
If  the  revolutionists  stand  for  liberal  government  against 
absolutism,  and  the  nation  called  upon  happens  to  be  in 
sympathy  with  the  political  views  of  the  revolutionists, 
it  need  not  accede  to  the  request.  The  view  sometime 
entertained  in  Europe  that  the  constituted  governments 
might  properly  interfere  without  being  asked,  in  order  to 
suppress  liberal  revolts  or  republican  revolutions,  is  not 
to  be  justified.  The  unfriendly  attitude  of  the  European 
powers  toward  the  republicanism  of  France  during  the 
French  Revolution  furnishes  a  case  in  point.  And  at  the 
Congress  of  Verona,  in  1822,  the  project  was  agitated  of 
bringing  the  revolted  colonies  of  Mexico  and  South  America 
back  under  the  authority  of  Spain.  This  project  was, 
moreover,  significant  in  that  it  gave  occasion  for  President 
Monroe's  utterance  which  became  the  basis  of  the  Monroe 
doctrine. 

Topics. — Meaning  of  national  independence. — Duty  of  non- 
interference.— Attitude  of  European  monarchies  toward  the  French 
Revolution  and  the  republicanism  of  France. 

205.  The  Monroe  Doctrine. — President  Monroe  having 
requested  Jefferson's  opinion  concerning  the  project  of  the 
Verona  Congress  and  the  correspondence  between  Mr.  Can- 
ning, England's  Prime  Minister,  and  Mr.  Rush,  the  American 
minister  in  London,  Mr.  Jefferson  wrote  that  "our  first  and 
fundamental  maxim  should  be  never  to  entangle  ourselves 
in  the  broils  of  Europe;  our  second,  never  to  suffer  Europe 
to  meddle  with  cisatlantic  affairs.  America,  North  and 
South,  has  a  set  of  interests  distinct  from  those  of  Europe 
and  peculiarly  her  own.  She  should,  therefore,  have  a  sys- 
tem of  her  own,  separate  and  apart  from  that  of  Europe." 
24 


362      THE   GOVERNMENT  OF  THE  UNITED   STATES 

In  his  message  of  December  2,  1823,  President  Monroe  de- 
clared that  "  we  should  consider  any  attempt  on  the  part 
[of  the  alhed  powers]  to  extend  their  system  to  any  part 
of  this  hemisphere  as  dangerous  to  our  peace  and  safety"; 
and  that  "  we  could  not  view  any  interposition  for  the  pur- 
pose of  oppressing  [governments  on  this  side  of  the  At- 
lantic whose  independence  we  had  acknowledged]  or  con- 
trolling in  any  manner  their  destinies  by  any  European 
power,  in  any  other  light  than  as  a  manifestation  of  an  un- 
friendly disposition  toward  the  United  States."  The  doc- 
trine that  has  been  developed  on  the  basis  of  President 
Monroe's  utterances  has  not  become  properly  a  part  of  in- 
ternational law;  it,  however,  represents  a  part  of  the  policy 
of  the  United  States,  and  will  probably  not  be  interfered 
with  if  the  Government  of  this  country  displays  a  proper 
determination  to  maintain  it,  and  to  refrain  from  interfer- 
ing in  the  affairs  of  Europe. 

Topics. — Origin  of  the  Monroe  Doctrine. — President  Monroe's 
declaration. — Foreign  policy  of  the  United  States. 

2o6.  National  Territory. — In  the  modern  conception  of 
a  nation,  there  is  involved  not  merely  the  notion  of  gov- 
ernment and  people,  but  also  the  idea  of  territory.  This 
territory  must  be  strictly  and  carefully  defined,  since  dis- 
puted boundaries  lead  almost  universally  to  international 
friction,  and  sometimes  to  war.  Territory  is  derived  in 
various  ways: 

1.  By  occupying  land  which  was  before  vacant,  con- 
firmed by  prescriptive  right. 

2.  By  establishing  colonies  and  drawing  lands  gradually 
under  their  dominion  by  the  various  means  employed  in 
colonial  extension. 

3.  By  conquest  followed  by  prescriptive  right. 

4.  By  purchase  or  by  gift. 

The  territorv  of  a  nation  embraces: 


INTERNATIONAL  RELATIONS  363 

1.  The  land  within  the  boundaries  as  well  as  the  interior 
seas,  lakes,  and  rivers  that  lie  wholly  within  these  bound- 
aries. Lake  Michigan,  for  instance,  is  a  part  of  the  territory 
of  the  United  States.  Sometimes  the  national  territory  is 
composed  of  two  or  more  distinct  tracts,  each  within  its 
separate  boundary.  These  separate  tracts  may  be  either 
islands  or  parts  of  the  continental  area. 

2.  Mouths  of  rivers,  bays,  and  estuaries. 

3.  The  seacoast  to  a  distance  of  one  marine  league,  or 
three  miles  from  the  land. 

Vessels  belonging  to  the  citizens  and  the  public  vessels 
of  a  given  nation,  on  the  high  seas,  have  some  of  the  attri- 
butes of  national  territory.  Persons  on  the  ship  are  sub- 
ject to  the  laws  of  the  nation  to  which  they  belong  until  the 
ship  comes  within  the  jurisdiction  of  another  nation.  But 
public  vessels,  warships,  and  all  other  vessels  owned  by  the 
government  and  employed  in  its  service,  even  if  in  a  foreign 
port,  are  exempt  from  local  jurisdiction. 

Topics. — Need  of  definite  boundaries  for  national  territory. — 
Ways  of  acquiring  territory. — What  embraced  in  national  territory. 
— Ships  on  the  high  seas. 

207.  The  Question  of  the  Mississippi. — During  the  war 
between  France  and  England  in  the  latter  half  of  the 
eighteenth  century,  France  transferred  Louisiana  to  Spain. 
At  the  close  of  the  War  of  Independence,  therefore,  the 
lower  Mississippi  ran  through  Spanish  territory.  The  Mis- 
sissippi valley  was  open  to  settlement  from  the  Eastern 
States,  and  its  population  was  increasing  rapidly.  Under 
these  circumstances  disputes  naturally  arose  between  the 
United  States  and  Spain  concerning  the  use  of  the  stream 
for  commerce.  Then,  by  the  treaty  of  San  Lorenzo  el 
Real,  in  1795,  citizens  of  the  United  States  were  granted 
the  use  of  the  river  with  the  privilege  of  depositing  and  re- 
shipping  at  New  Orleans  the  goods  brought  down  from  the 


364      THE   GOVERNMENT   OF   THE   UNITED   STATES 

northern  settlements.  In  the  negotiations  between  the 
two  powers  concerning  this  question,  "the  United  States 
had  contended  that  there  is  a  natural  right  belonging  to  the 
inhabitants  on  the  upper  waters  of  a  stream,  under  whatever 
political  society  they  might  be  found,  to  descend  by  it  to 
the  ocean."  But  the  argument  by  which  it  was  sought  to 
maintain  this  position  was  not  conclusive,  and  even  the 
advocates  of  the  claim  of  the  United  States  admitted  that 
the  right  was  an  imperfect  one. 

By  acquiring  Louisiana  and  Florida,  the  United  States 
came  into  possession  of  all  the  lands  on  both  sides  of  the 
Mississippi  from  its  source  to  its  mouth;  and  no  further 
question  as  to  the  control  of  the  river  arose.  "  Since  then, 
the  exclusive  control  of  the  river  by  the  United  States,  so 
far  as  concerns  foreign  states,  has  been  conceded  internation- 
ally; though,  subject  to  police  supervision  and  to  the  right 
to  impose  pilotage  and  quarantine  regulations,  the  free 
navigation  of  this  and  of  other  navigable  rivers  within  the 
United  States  is,  by  the  law  of  nations,  accepted  by  the 
United  States,  open  to  all  ships  of  foreign  sovereigns." 

A  similar  question  arose  with  respect  to  the  St.  Lawrence, 
from  the  British  point  of  view.  This  was  settled  by  the 
treaty  of  June  5,  1854.  By  this  treaty  the  St.  Lawrence 
River  and  the  canals  in  Canada  were  thrown  open  to  naviga- 
tion by  citizens  of  the  United  States,  who  were  accorded 
the  same  rights  and  privileges  as  the  subjects  of  Great 
Britain. 

The  Stikine,  Yukon,  and  Porcupine  rivers  rise  in  British 
territory  and  flow  through  Alaska  to  the  sea.  Questions 
respecting  their  navigation  were  settled  by  the  treaty  of 
Washington  in  1871,  when  they  were  opened  to  the  service 
of  both  nations. 

Topics. — The  Mississippi  question. — Treaty  of  San  Lorenzo, 
1795. — Question  with  respect  to  the  St.  Lawrence  and  other 
rivers. 


INTERNATIONAL  RELATIONS  365 

208.  A  Nation's  Attitude  Toward  Aliens. — It  is  hardly 
necessary  to  discuss  the  question  whether  or  not  a  nation 
may  properly  withdraw  itself  from  intercourse  with  other 
nations,  since  this  policy,  almost  everywhere,  has  ceased 
to  be  entertained.  Nations  that  formerly  saw  only  dis- 
advantages in  intercourse  with  foreigners  find  many  ad- 
vantages when  once  the  barriers  have  been  removed.  A 
necessary  incident  to  this  intercourse  is  the  recognition  of 
an  obligation  to  afford  the  alien  due  protection  within  the 
limits  of  the  state's  jurisdiction.  The  alien  may  claim 
protection  and  considerate  treatment  under  the  general 
duty  of  humanity  which  should  always  control  the  state's 
actions  with  reference  to  individual  persons.  This  protec- 
tion is  due  particularly:  (1)  To  distressed  foreigners,  such  as 
the  survivors  from  shipwreck  who  have  been  cast  upon  the 
shore;  (2)  to  persons  innocently  seeking  a  passage  across 
the  territory  to  some  other  land  they  wish  to  reach;  (3)  to 
persons  traveling  for  pleasure  or  for  the  sake  of  gatnering 
such  information  as  in  the  opinion  of  the  government  may 
become  public  without  detriment  to  the  state. 

Aliens  admitted  to  this  country  are  subject  to  its  laws, 
unless  by  law  they  are  granted  exemption  in  certain  par- 
ticulars. This  exemption  is  sometimes  complete,  amount- 
ing to  what  is  known  as  exterritoriality.  This  applies  es- 
pecially: (1)  To  sovereigns  traveling  with  their  trains;  (2) 
to  ambassadors,  their  suite,  family,  and  servants;  (3)  to  the 
officers  and  crews  of  public  armed  vessels  in  port,  and  to 
armies  in  case  they  are  permitted  to  pass  over  territory  be- 
longing to  the  nation. 

Sometimes  Christian  states  have  demanded  that  their 
citizens  or  subjects  shall  be  exempt  from  the  local  courts 
when  residing  in  certain  Oriental  countries.  In  such  cases 
they  are  often  permitted  to  reside  only  in  certain  specified 
parts  of  the  country,  which  have  been  defined  by  treaties. 
When  a  crime  has  been  committed  by  a  member  of  the  nation 


366      THE   GOVERNMENT   OF   THE   UNITED   STATES 

enjoying  this  privilege,  the  criminal  is  tried  before  a  court 
estabhshed  at  the  consulate  of  the  nation  to  which  he  belongs. 

Topics. — Protection  due  persons  who  are  not  citizens. — 
Position  of  aliens. — Exterritoriality. 

209.  Extradition. — In  the  successful  administration  of 
justice,  much  depends  on  the  attitude  which  nations  assume 
toward  one  another  as  to  the  extradition  of  criminals.  If 
the  criminal  knows  that  the  government  of  the  country  in 
which  he  has  taken  refuge  will  not  surrender  him  to  the 
pursuing  officers,  the  moral  force  of  the  law  he  has  violated 
will  be  greatly  diminished.  It  is,  of  course,  competent  for 
any  nation  to  take  this  position  and  hold  that  it  is  not  under 
any  obligation  to  administer  the  criminal  laws  of  another 
country,  or  to  aid  in  administering  them.  It  is,  however, 
interested  in  rejecting  as  many  criminal  immigrants  as  it 
may  find  within  its  borders.  A  serious  difficulty  in  the 
matter  arises  from  the  different  definitions  of  crime  that 
obtain  in  different  countries.  One  government  may  demand 
a  prisoner  for  punishment  for  an  action  which  the  second 
nation  does  not  consider  a  crime  meriting  the  proposed 
penalty. 

There  appear  to  be  two  ways  of  dealing  with  this  ques- 
tion: One  is  by  requesting  that,  as  a  special  favor,  the 
government  of  the  country  in  which  the  criminal  has  taken 
refuge  deliver  him  up.  This  unregulated  action  may  lead 
to  the  surrender  of  persons  who  ought  not  to  be  surrendered, 
such  as  political  offenders.  The  other  way  is  by  forming 
treaties  embracing  international  rules  and  descriptions  of 
the  crimes  for  which  extradition  shall  be  had,  and  by  de- 
manding the  prisoners  under  the  terms  of  the  treaty  with 
the  nation  in  question. 

Topics. — Extradition  of  criminals. — State's  attitude  toward 
criminal  immigrants. — Different  views  of  crime. — Treaties  provid- 
ing for  extradition. 


INTERNATIONAL  RELATIONS 


367 


210.  Reputation  of  Other  States  to  be  Regarded. — It  is 

the  duty  of  every  state  in  communicating  with  other  states 
to  avoid  all  expressions  that  may  be  interpreted  as  insults, 
or  may  be  considered  as  damaging  to  reputation.  This 
applies  to  documents  not  intended  to  be  sent  out  of  the 
country,  as  well  as  to  those  addressed  to  governmental 
agents  abroad  and  to  foreign  governments.  The  United 
States  sent  a  secret  agent  to  Hungary  in  1850.  The  object 
of  the  mission  was  to  determine  whether  it  was  probable 
that  Hungary  would  gain  her  independence.  The  instruc- 
tions were  published;  and  the  expression,  "iron  rule,"  used 
to  characterize  Austria's  control  over  Hungary,  moved  the 
Austrian  Government  to  request  Mr.  Hiilseman,  the  Aus- 
trian charge  d'affaires  in  Washington,  to  make  known  its 
displeasure  at  the  offensive  language.  In  the  correspond- 
ence which  followed,  the  authorities  of  the  United  States 
affirmed  that  it  was  unavoidable  that  this  nation  should 
sympathize  with  a  people  struggling  for  independence,  and 
"  that  a  communication  from  the  President  to  either  house 
of  Congress  is  regarded  as  a  domestic  communication,  of 
which  ordinarily  no  foreign  state  has  cognizance."  The 
conclusion  drawn  from  the  correspondence  relating  to  this 
incident  appears  to  be  that  a  foreign  nation  may  properly 
protest  against  expressions  used  in  communications  between 
the  departments  of  a  government;  and,  if  injurious  to  its 
reputation,  the  foreign  state  may  demand  redress. 

Topics. — Communication  between  states. — Concerning  inde- 
pendence of  Hungary. — Foreign  criticism  of  domestic  communica- 
tions. 


211.  Treaties. — It  has  already  been  stated  that  treaties 
to  which  the  United  States  is  a  party  are  made  by  the 
President  with  the  cooperation  of  the  Senate.  These  are 
the  constituted  agents  of  the  nation  for  treaty-making. 
Before  a  treaty  can  be  made  with  another  power,  the  prop- 


368      THE   GOVERNMENT  OF  THE   UNITED   STATES 

erly  authorized  agents  for  this  purpose  in  the  foreign  gov- 
ernment must  be  found.  In  the  United  States  the  power 
of  the  actual  Government  is  Hmited  by  the  Constitution; 
whence  it  follows  that  if  a  treaty  is  made  by  the  President 
and  the  Senate,  which  violates  the  Constitution,  it  is  in 
so  far  invalid;  for  the  determinations  of  the  President  or 
the  Senate  acting  outside  of  power  granted  by  the  Constitu- 
tion have  no  more  binding  force  than  have  the  acts  of  any 
private  citizens. 

In  case  the  authorities  empowered  to  make  a  treaty 
treacherously  sacrifice  the  interests  of  the  nation,  such  a 
treaty  can  scarcely  be  regarded  as  the  act  of  the  nation, 
and  in  justice  should  not  stand.  There  are,  however,  grave 
difficulties  in  the  way  of  invalidating  treaties  that  have 
been  framed  with  strict  observance  of  all  the  prescribed 
forms,  even  though  it  may  be  claimed  that  the  makers  of 
the  treaty  have  acted  without  patriotism  and  been  careless 
of  the  interests  of  the  nation  they  professed  to  represent. 
If  the  signature  of  one  party  to  a  treaty  is  obtained  by  force 
or  by  the  false  representations  of  the  other  party,  the  treaty 
is  not  binding.  If  a  treaty  sacrifices  the  interests  of  the 
nation,  its  validity  is  not  impaired  if  this  result  is  due  to 
lack  of  information  or  the  stupidity  of  the  nation's  repre- 
sentative, and  not  to  false  statements  made  by  the  oppo- 
site party  with  the  intention  to  deceive.  The  makers  of  a 
treaty  cannot  bind  this  nation  to  do  an  act  prohibited  by 
the  Constitution. 

Treaties  are  of  various  kinds.  Commercial  treaties  de- 
fine private  relations.  They  fix  certain  terms  under  which 
private  persons  residing  in  different  countries  may  trade 
with  one  another.  Political  treaties  deal  with  sovereign 
states  in  their  relation  to  other  sovereign  states.  As  re- 
gards their  duration,  some  treaties  are  temporary  and  others 
are  of  unlimited  duration.  Among  the  various  forms  of 
treaties,  treaties  of  alliance  are  conspicuous;  and  alliances 


INTERNATIONAL  RELATIONS  369 

may  be  formed  for  a  variety  of  purposes.  Two  nations  may 
form  an  alliance  for  the  purpose  of  carrying  on  a  war  against 
a  common  enemy.  This  is  an  offensive  alliance.  They  may 
form  an  alliance  for  the  purpose  of  defending  themselves 
against  foreign  encroachments.  An  alliance  of  this  kind  is 
called  an  alliance  for  defense,  or  a  defensive  alliance. 

Topics. — The  making  of  treaties  by  the  United  States. — 
Powers  of  President  and  Senate  as  to  treaties. — What  treaties 
not  binding. — Relation  of  Constitution  to  treaties. — Kinds  of 
treaties. 

212.  The  Settlement  of  International  Disputes. — Since 
sovereign  nations  have  no  common  superior  to  whom  they 
can  appeal  for  a  settlement  of  their  differences,  they  have 
adopted  various  means  to  secure  a  recognition  of  what  they 
consider  to  be  their  rights.  In  the  first  place,  they  enter 
into  correspondence  with  one  another  through  their  properly 
accredited  agents,  hoping  that  a  reasonable  presentation 
and  comparison  of  their  claims  will  enable  them  to  unite  on 
some  common  ground,  and  formulate  and  approve  terms  of 
agreement.  In  the  second  place,  finding  themselves  unable 
to  reach  such  an  agreement,  they  conclude  to  refer  the  case 
to  a  third  person  who  is  authorized  by  them  to  consider  the 
merits  of  both  sides  of  the  contention  and  pronounce  a 
decision,  the  opposing  parties  having  agreed  to  accept  and 
abide  by  this  decision.  In  the  third  place,  not  being  able 
to  reach  an  agreement  by  either  of  these  means,  they  resort 
to  force.  The  first  means  employed  is  diplomacy;  the 
second  is  arbitration;   the  third  is  war. 

Topics. — International  controversies. — Methods  of  settlement: 
Diplomatic  correspondence;  arbitration;  war. 

213.  Neutral  Nations  in  Times  of  War.  —  Although 
nations  may  resort  to  war  as  a  method  of  settling  their 
disputes,  no  war  is  likely  to  involve  all  the  nations  of  the 


370      THE   GOVERNMENT   OF   THE   UNITED   STATES 

world  at  the  same  time.  Under  any  probable  circumstances, 
therefore,  there  will  remain  at  all  times  many  nations  at 
peace  with  one  another  and  with  the  states  that  are  carry- 
ing on  the  war.  These  are  the  neutral  nations.  They  are 
..^xpected  to  maintain  peaceful  relations  with  both  of  the 
belligerents,  as  the  nations  at  war  are  called,  and  to  hold  an 
impartial  attitude  toward  them.  They  are  expected,  more- 
over, to  abstain  from  assisting  either  party  in  the  conflict, 
and  to  maintain  the  friendly  relations  that  existed  before 
the  war  began.  A  neutral  state  may  not  furnish  either 
belligerent  with  articles  of  food  or  munitions  of  war  or  with 
anything  that  will  in  any  manner  aid  him  in  his  military 
operations.  It  may  not  permit  its  ports  or  territorial  waters 
to  be  used  as  a  base  for  military  or  naval  undertakings;  nor 
may  it  permit  deposits  of  supplies  within  the  limits  of  its 
territory.  Furthermore,  when  a  ship  from  a  belligerent  fleet 
takes  refuge  in  a  neutral  port  it  is  expected  that  it  will  leave 
within  twenty-four  hours  or  remain  dismantled  till  the  end 
of  the  war.  The  vessels  of  a  neutral  state  may  traverse  the 
high  seas  undisturbed,  except  when  carrying  contraband  of 
war— that  is  to  say,  except  when  carrying  articles  destined  to 
the  military  use  or  assistance  of  a  belligerent. 

Fortunately,  at  present,  the  enlightened  nations  insist  on 
the  rigid  observance  of  the  rules  of  neutrality;  and  on 
the  remarkable  unanimity  of  opinion  shown  throughout  the 
civilized  world  in  1905,  that  the  war  between  Japan  and 
Russia  had  continued  long  enough  and  should  close,  we  may 
found  the  hope  that  the  neutral  nations  will  suffer  war  to 
last  only  to  the  attainment  of  essential  justice,  and  that 
their  combined  moral  influence  in  the  future  will  be  exerted 
to  the  maintenance  of  peace. 

Topics. — Definition  of  neutral  nation. — Duties  of  neutral  na- 
tions.— Neutral  ports  and  neutral  vessels. — Moral  force  of  neutrals- 


APPENDIX 


AN    ORDINANCE    FOR    THE    GOVERNMENT    OF  THE 

TERRITORY  OF   THE  UNITED  STATES, 

NORTHWEST  OF  THE   RIVER  OHIO. 

July  13,  1787. 

Be  it  ordained,  by  the  United  States,  in  Congress  assembled,  that 
the  said  Territory,  for  the  purposes  of  temporary  government,  be 
one  district;  subject,  however,  to  be  divided  into  two  districts, 
as  future  circumstances  may,  in  the  opinion  of  Congress,  make  it 
expedient. 

Be  it  ordained,  by  the  authority  aforesaid,  that  the  estates,  both 
of  resident  and  non-resident  proprietors  in  the  said  Territory,  dying 
intestate,  shall  descend  to,  and  be  distributed  among,  their  children, 
and  the  descendants  of  a  deceased  child,  in  equal  parts;  the  descend- 
ants of  a  deceased  child  or  grandchild,  to  take  the  share  of  their 
deceased  parent,  in  equal  parts,  among  them;  and  where  there  shall 
be  no  children  or  descendants,  then  in  equal  parts  to  the  next  of  kin, 
in  equal  degree;  and  among  collaterals,  the  children  of  a  deceased 
brother  or  sister  of  the  intestate,  shall  have,  in  equal  parts,  among 
them,  their  deceased  parent's  share;  and  there  shall  in  no  case  be  a 
distinction  between  kindred  of  the  whole  and  half  blood;  saving  in 
all  cases  to  the  widow  of  the  intestate,  her  third  part  of  the  real 
estate  for  life,  and  one-third  part  of  the  personal  estate;  and  this  law 
relative  to  descents  and  dower,  shall  remain  in  full  force  until  altered 
by  the  legislature  of  the  district.     And  until  the  governor  and  judges 
shall  adopt  laws  as  hereinafter  mentioned,  estates  in  the  said  Terri- 
tory may  be  devised  or  bequeathed  by  wills  in  writing,  signed  and 
sealed  by  him  or  her,  in  whom  the  estate  may  be  (being  of  full  age), 
and  attested  by  three  witnesses,  and  real  estates  may  be  conveyed  by 
lease  and  release,  or  bargain  and  sale,  signed,  sealed,  and  delivered 
by  the  person,  being  of  full  age,  in  whom  the  estate  may  be,  and 
attested  by  two  witnesses,  provided  such  wills  be  duly  proved,  and 
such  conveyances  be  acknowledged,  or  the  execution  thereof  duly 

371 


A  single 
district,  or 
two. 


Descent  of 
property. 


Widow  to 
receive  tiie 
third  part. 


May  be 
bequeatlied 
by  will. 


372 


APPENDIX 


GoTernor's 
term,  three 
years. 
Must  own 
1,000  acres 
in  the  dis- 
trict. 


Governor 
and  secre- 
tary ap- 
pointed by 
Congress. 


Three 
judges, 
each  must 
own  500 
acres. 


Governor 
and  judges 
may  adopt 
laws  from 
older 
States. 


Governor, 
command- 
er in  chief 
of  militia. 


proved,  and  be  recorded  within  one  year  after  proper  magistrates, 
courts,  and  registers  shall  be  appointed  for  that  purpose;  and  per- 
sonal property  may  be  transferred  by  delivery,  saving,  however, 
to  the  French  and  Canadian  inhabitants,  and  other  settlers  of  the 
Kaskaskias,  Saint  Vincents,  and  the  neighboring  villages,  who  have 
heretofore  professed  themselves  citizens  of  Virginia,  their  laws  and 
customs  now  in  force  among  them,  relative  to  descent  and  convey- 
ance of  property. 

Be  it  ordained,  by  the  authority  aforesaid,  that  there  shall  be  ap- 
pointed from  time  to  time,  by  Congress,  a  governor,  whose  com- 
mission shall  continue  in  force  for  the  term  of  three  years,  unless 
sooner  revoked  by  Congress;  he  shall  reside  in  the  district,  and  have  a 
freehold  estate  therein,  in  one  thousand  acres  of  land,  while  in  the 
exercise  of  his  office.  There  shall  be  appointed  from  time  to  time, 
by  Congress,  a  secretary,  whose  commission  shall  continue  in  force 
for  four  years,  unless  sooner  revoked;  he  shall  reside  in  the  district, 
and  have  a  freehold  estate  therein,  in  five  hundred  acres  of  land, 
while  in  the  exercise  of  his  office;  it  shall  be  his  duty  to  keep  and  pre- 
serve the  acts  and  laws  passed  by  the  legislature,  and  the  public 
records  of  the  district,  and  the  proceedings  of  the  governor  in  his 
executive  department;  and  transmit  authentic  copies  of  such  acts 
and  proceedings,  every  six  months,  to  the  secretary  of  Congress. 
There  shall  also  be  appointed  a  court,  to  consist  of  three  judges,  any 
two  of  whom  to  form  a  court,  who  shall  have  a  common-law  juris- 
diction, and  reside  in  the  district,  and  have  each  therein  a  freehold 
estate,  in  five  hundred  acres  of  land,  while  in  the  exercise  of  their 
offices;  and  their  commissions  shall  continue  in  force  during  good 
behavior. 

The  governor  and  judges,  or  a  majority  of  them,  shall  adopt  and 
publish  in  the  district,  such  laws  of  the  original  States,  criminal  and 
civil,  as  may  be  necessary,  and  best  suited  to  the  circumstances  of 
the  district,  and  report  them  to  Congress,  from  time  to  time,  which 
laws  shall  be  in  force  in  the  district  until  the  organization  of  the 
general  assembly  therein,  unless  disapproved  of  by  Congress;  but 
afterward,  the  legislature  shall  have  authority  to  alter  them  as  they 
shall  think  fit. 

The  governor,  for  the  time  being,  shall  be  commander  in  chief  of 
the  militia,  appoint  and  commission  aU  officers  in  the  same,  below 
the  rank  of  general  officers.  All  general  officers  shall  be  appointed 
and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  general  assembly,  the  governor 
shall  appoint  such  magistrates  and  other  civil  officers,  in  each  county 


APPENDIX 


373 


or  township,  as  he  shall  find  necessarj'  for  the  preservation  of  the 
peace  and  good  order  in  the  same.  After  the  general  assembly  shall 
be  organized,  the  powers  and  duties  of  magistrates  and  other  civil 
officers  shall  be  regulated  and  defined  by  the  said  assembly;  but  all 
magistrates  and  other  civil  officers,  not  herein  otherwise  directed, 
shall,  during  the  continuance  of  this  temporary  government,  be 
appointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be  adopted 
or  made  shall  have  force  in  all  parts  of  the  district,  and  for  the  exe- 
cution of  process,  criminal  and  civil,  the  governor  shall  make  proper 
divisions  thereof;  and  he  shall  proceed  from  time  to  time,  as  circum- 
stances may  require,  to  lay  out  the  parts  of  the  district  in  which  the 
Indian  titles  shall  have  been  extinguished,  into  counties  and  town- 
ships, subject,  however,  to  such  alterations  as  may  thereafter  be  made 
by  the  legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitants,  of 
full  age,  in  the  district,  upon  giving  proof  thereof  to  the  governor, 
they  shall  receive  authority,  with  time  and  place,  to  elect  representa- 
tives from  their  counties  or  townships,  to  represent  them  in  the 
general  assembly:  provided,  that  for  everj'  five  hundred  free  male 
inhabitants  there  shall  be  one  representative,  and  so  on  progressively 
with  the  number  of  free  male  inhabitants,  shall  the  right  of  representa- 
tion increase,  until  the  number  of  representatives  shall  amount  to 
twenty-five,  after  which  the  numter  and  proportion  of  representa- 
tives shall  be  regulated  by  the  legislature;  provided,  that  no  person 
be  eligible  or  qualified  to  act  as  a  representative,  unless  he  shall  have 
been  a  citizen  of  one  of  the  United  States  three  years,  and  be  a  resi- 
dent in  the  district,  or  unless  he  shall  have  resided  in  the  district 
three  years,  and  in  either  case  shall  likewise  hold  in  his  own  right,  in 
fee  simple,  two  hundred  acres  of  land  within  the  same;  provided,  also, 
that  a  freehold  in  fifty  acres  of  land  in  the  district,  having  been  a 
citizen  of  one  of  the  States,  and  being  resident  in  the  district,  or  the 
like  freehold  and  two  years'  residence  in  the  district,  shall  be  neces- 
sary to  qualify  a  man  as  an  elector  of  a  representative. 

The  representatives  thus  elected,  shall  serve  for  the  term  of  two 
years,  and  in  case  of  the  death  of  a  representative,  or  removal  from 
office,  the  governor  shall  issue  a  writ  to  the  county  or  township  for 
which  he  was  a  member,  to  elect  another  in  his  stead,  to  serve  for 
the  residue  of  the  term. 

The  general  assembly,  or  legislature,  shall  consist  of  the  governor, 
legislative  council,  and  a  house  of  representatives.  The  legislative 
council  shall  consist  of  five  members,  to  continue  in  office  for  five 


Counties 
and  town- 
ships to  be 
laid  ou 


General 
assembly, 
when  5,000 
inhabitants. 


Qualifica- 
tions of 
representa- 
tives. 


Term,  two 

years, 

in  general 

assembly. 


374 


APPENDIX 


Legislative 
council, 
representa- 
tives, and 
governor. 


Mode  of 
appointing 
legislative 
council. 

Law- 
making. 


Oaths  of 
office. 


Delegate 
In  Con- 
gress. 

Fundamen- 
tal prin- 
ciples. 


years,  unless  sooner  removed  by  Congress,  any  three  of  whom  to  be  a 
quorum,  and  the  members  of  the  council  shall  be  nominated  and 
appointed  in  the  following  manner:  to  wit,  as  soon  as  representa- 
tives shall  be  elected,  the  governor  shall  appoint  a  time  and  place  for 
them  to  meet  together,  and  when  met,  they  shall  nominate  ten 
persons,  residents  in  the  district,  and  each  possessed  of  a  freehold  in 
five  hundred  acres  of  land,  and  return  their  names  to  Congress;  five 
of  whom  Congress  shall  appoint  and  commission  to  serve  as  aforesaid; 
and  whenever  a  vacancy  shall  happen  in  the  council,  by  death  or 
removal  from  office,  the  house  of  representatives  shall  nominate  two 
persons,  qualified  as  aforesaid,  for  each  vacancy,  and  return  their 
names  to  Congress,  one  of  whom  Congress  shall  appoint  and  com- 
mission for  the  residue  of  the  term;  and  every  five  years,  four  months 
at  least  before  the  expiration  of  the  time  of  service  of  the  members  of 
council,  the  said  house  shall  nominate  ten  persons,  qualified  as  afore- 
said, and  return  their  names  to  Congress,  five  of  whom  Congress 
shall  appoint  and  commission  to  serve  as  members  of  the  council 
five  years,  unless  sooner  removed. 

And  the  governor,  legislative  council,  and  house  of  representa- 
tives shall  have  authority  to  make  laws  in  all  cases  for  the  good 
government  of  the  district,  not  repugnant  to  the  principles  and  articles 
in  this  ordinance  established  and  declared.  And  all  bills  having 
passed  by  a  majority  in  the  house,  and  by  a  majority  in  the  council, 
shaU  be  referred  to  the  governor  for  his  assent;  but  no  bill  or  legis- 
lative act  whatever  shall  be  of  any  force  without  his  assent.  The 
governor  shall  have  power  to  convene,  prorogue,  and  dissolve  the 
general  assembly,  when  in  his  opinion  it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and  such 
other  officers  as  Congress  shall  appoint  in  thf  district,  shall  take  an 
oath  or  affirmation  of  fidelity,  and  of  office — the  governor  before  the 
president  of  Congress,  and  all  other  officers  before  the  governor.  As 
soon  as  a  legislature  shall  be  formed  in  the  district,  the  council  and 
house,  assembled  in  one  room,  shall  have  authority,  by  joint  ballot, 
to  elect  a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress 
with  a  right  of  debating,  but  not  of  voting,  during  this  temporary 
government. 

And  for  extending  the  fundamental  principles  of  civil  and  relig- 
ious liberty,  which  form  the  basis  whereon  these  republics,  their 
laws  and  constitutions,  are  erected;  to  fix  and  establish  those  prin- 
ciples as  the  basis  of  all  laws,  constitutions,  and  governments,  which 
forever  hereafter  shall  be  formed  in  the  said  Territory;  to  provide 
also  for  the  establishment  of  States;  and  permanent  government 


APPENDIX 


375 


therein,  and  for  their  admission  to  a  share  in  the  federal  councils 
on  an  equal  footing  with  the  original  States,  at  as  early  periods  as 
may  be  consistent  with  the  general  interest. 

It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid, 
that  the  following  articles  shall  be  considered  as  articles  of  compact 
between  the  original  States  and  the  people  and  States  in  the  said 
Territory,  and  forever  remain  unalterable,  unless  by  common  con- 
sent, to  wit: 

Article  I. — No  person  demeaning  himself  in  a  peaceable  and    BUI  of 
orderly  manner,  shall  ever  be  molested  on  account  of  his  mode  of    Rights. 
worship  or  religious  sentiments  in  the  said  Territory. 

Art.  II. — The  inhabitants  of  the  said  Territorj^  shall  always  be 
entitled  to  the  benefit  of  the  writ  of  habeas  corpus,  and  of  trial  by 
jury;  of  a  proportionate  representation  of  the  people  in  the  legisla- 
ture, and  of  judicial  proceedings  according  to  the  course  of  the  com- 
mon law;  all  persons  shall  be  bailable  unless  for  capital  offenses, 
where  the  proof  shall  be  evident  or  the  presumption  great;  all  fines 
shall  be  moderate,  and  no  cruel  or  unusual  punishment  shall  be 
inflicted ;  no  man  shall  be  deprived  of  his  liberty  or  property  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land;  and  should  the 
public  exigencies  make  it  necessary  for  the  common  preservation  to 
take  any  person's  property,  or  to  demand  his  particular  services,  full 
compensation  shall  be  made  for  the  same;  and  in  the  just  preser- 
vation of  rights  and  property,  it  is  understood  and  declared,  that 
no  law  ought  ever  to  be  made,  or  have  force  in  the  said  Territory, 
that  shall  in  any  manner  whatever,  interfere  with,  or  affect  private 
contracts  or  engagements,  bona  fide  and  without  fraud  previously 
formed. 

Art.  III. — Religion,  morality,  and  knowledge,  being  necessary  to  Religion. 
good  government  and  the  happiness  of  mankind,  schools,  and  the 
means  of  education  shall  forever  be  encouraged.  The  utmost  good 
faith  shall  always  be  observed  toward  the  Indians;  their  lands 
and  property  shall  never  be  taken  from  them  without  their  consent; 
and  in  their  property,  rights,  and  liberty,  they  shall  never  be  in- 
vaded or  disturbed,  unless  in  just  and  lawful  wars  authorized  by 
Congress;  but  laws  founded  in  justice  and  hiunanity,  shall,  from 
time  to  time,  be  made,  for  preventing  wrongs  being  done  to  ihem, 
and  for  preserving  peace  and  friendship  with  them. 

Art.   IV. — The  said  Territory,  and  the  States  which  may  be    Perpetually 

formed  therein,  shall  forever  remain  a  part  of  this  confederacy  of    P<irtofthe 

1  nion 
the  United  States  of  .America,  subject  to  the  Articles  of  Confeder- 
ation, and  to  such  alteration  therein,  as  shall  be  constitutionally 


Treatment 
of  Indians. 


376 


APPENDIX 


Taxation. 


Not  less 
t!!an  three 
nor  more 
than  five 
States  may 
be  formed. 

Boundaries. 


made;  and  to  all  the  acts  and  ordinances  of  the  United  States,  in 
Congress  assembled,  conformable  thereto.  The  inhabitants  and 
settlers  in  the  said  Territory  shall  be  subject  to  pay  a  part  of  the 
federal  debts  contracted  or  to  be  contracted,  and  a  proportional 
part  of  the  expenses  of  government,  to  be  apportioned  on  them,  by 
Congress,  according  to  the  same  common  rule  and  measure  by 
which  apportionments  thereof  shall  be  made  on  the  other  States; 
and  the  taxes  for  paying  their  proportion,  shall  be  laid  and  levied 
by  the  authority  and  direction  of  the  legislatures  of  the  district,  or 
districts,  or  new  States,  as  in  the  original  States,  within  the  time 
agreed  upon  by  the  United  States,  in  Congress  assembled.  The  legis- 
latures of  those  districts,  or  new  States,  shall  never  interfere  with 
the  primary  disposal  of  the  soil  by  the  United  States,  in  Congress 
assembled,  nor  with  any  regulations  Congress  may  find  necessary 
for  securing  the  title  in  such  soil  to  the  bona  fide  purchasers.  No  tax 
shall  be  imposed  on  lands  the  property  of  the  United  States;  and 
in  no  case  shall  non-resident  proprietors  be  taxed  higher  than  resi- 
dents. The  navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence,  and  the  carrj-ing  places  between  the  same,  shall  be 
common  highways,  and  forever  free,  as  well  to  the  inhabitants  of 
the  said  Territory',  as  to  the  citizens  of  the  United  States,  and  those 
of  any  other  States  that  may  be  admitted  into  the  confederacy, 
without  any  tax,  impost,  or  duty  therefor. 

Art.  V. — There  shall  be  formed  in  the  said  Territory  not  less 
than  three,  nor  more  than  five  States;  and  the  boundaries  of  the 
States,  as  soon  as  Virginia  shall  alter  her  act  of  cession  and  consent 
to  the  same,  shall  become  fixed  and  established  as  follows,  to  wt: 
The  western  State  in  the  said  Territory  shall  be  bounded  by  the  Mis- 
sissippi, the  Ohio,  and  the  Wabash  rivers;  a  direct  line  dra^-n  from 
the  Wabash  and  Post  St.  Vincent's  due  north  to  the  territorial  line 
between  the  United  States  and  Canada,  and  by  the  said  territorial 
line  to  the  Lake  of  the  Woods  and  Mississippi.  The  middle  State 
shall  be  bounded  by  the  said  direct  line,  the  Wabash  from  Post  St. 
Vincent's  to  the  Ohio,  by  the  Ohio,  by  a  direct  line  drawn  due  north 
from  the  mouth  of  the  Great  Miami  to  the  said  territorial  line,  and 
by  said  territorial  line.  The  eastern  State  shall  be  bounded  by  the 
last-mentioned  direct  line,  the  Ohio,  Pennsylvania,  and  the  said  terri- 
torial line:  provided,  however,  and  it  is  further  understood  and 
declared,  that  the  boundaries  of  these  three  States  shall  be  subject 
so  far  to  be  altered,  that  if  Congress  shall  hereafter  find  it  expedient 
they  shall  have  authority  to  form  one  or  two  States  in  that  part  of 
the  said  Territory  which  lies  north  of  an  east  and  west  line  drawn 


APFEiS  DIX 


377 


through  the  southerly  bend  or  extreme  of  Lake  Michigan.  And 
whenever  any  of  the  said  States  shall  have  sixty  thousand  free 
inhabitants  therein,  such  State  shall  be  admitted  by  its  delegates, 
into  the  Congress  of  the  United  States,  on  an  equal  footing  with  the 
original  States,  in  all  respects  whatsoever;  and  shall  be  at  liberty 
to  form  a  permanent  constitution  and  State  government :  provided, 
the  constitution  and  government  so  to  be  formed  shall  be  republican, 
and  in  conformity  to  the  principles  contained  in  these  articles;  and, 
so  far  as  it  can  be  consistent  with  the  general  interest  of  the  con- 
federacy, such  admission  shall  be  allowed  at  an  earlier  period,  and 
when  there  may  be  a  less  number  of  free  inhabitants  in  the  State 
than  sixty  thousand. 

Art.  VI. — There  shall  be  neither  slavery  nor  involuntary  servitude    Slavery  not 
in  the  said  Territory^  otherwise  than  in  the  punishment  of  crimes    permitted. 
whereof  the  party  shall  have  been  duly  convicted:  'provided,  always, 
that  any  person  escaping  into  the  same,  from  whom  labor  or  service    Fugitive 
is  lawfully  claimed  in  any  one  of  the  original  States,  such  fugitive    slaves  may 
may  be  lawfully  reclaimed  and  conveyed  to  the  person  claiming 
his  or  her  labor  or  service  as  aforesaid. 

Be  it  ordained,  by  the  authority  aforesaid,  that  the  resolutions 
of  the  23d  of  April,  1784,  relative  to  the  subject  of  this  ordinance, 
be,  and  the  same  are  hereby  repealed  and  declared  null  and  void. 


n 


ARTICLES  OF  CONFEDERATION 


Articles  of  Coxfederatiox  and  Perpetual  Union*  Between 
THE  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  North  Carolina,  South  Carolina,  and 
Georgia. 

Article  I. — The  style  of  this  Confederacy  shall  be  "The  United  Name. 
States  of  America." 

Art.  II. — Each  State  retains  its  sovereignty,  freedom,  and  inde-  Each  state 

pendence,  and  every  power,   jurisdiction,  and  right,  which  is  not  *"  ''"'''  •*'' 

by  this  Confederation  expressly  delegated  to  the  United  States,  in  expressly 

Congress  assembled.  "  delegated. 

25 


378 


APPENDIX 


League  of 
friendship 
for  general 
welfare. 


Free  inter- 
state mi- 
gration and 
commerce. 


Fleeing 
criminals 
to  be  given 
up  by 
States. 


Full  faith 
and  credit 
to  records. 

Delegates 
to  Con- 
gress. 


Art.  III. — The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other  for  their  conunon  defense, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other  against  all  force  offered 
to,  or  attacks  made  upon  them,  or  any  of  them,  on  account  of 
religion,  sovereignty,  trade,  or  any  other  pretense  whatever. 

Art.  IV. — The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States  of 
this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
vagabonds,  and  fugitives  from  justice  excepted,  shall  be  entitled 
to  all  privileges  and  immunities  of  free  citizens  in  the  several  States; 
and  the  people  of  each  State  shall  have  free  ingress  and  regress  to 
and  from  any  other  State,  and  shall  enjoy  therein  all  the  privileges 
of  trade  and  commerce,  subject  to  the  same  duties,  impositions, 
and  restrictions  as  the  inhabitants  thereof  respectively:  provided, 
that  such  restrictions  shall  not  extend  so  far  as  to  prevent  the 
removal  of  property  imported  into  any  State,  to  any  other  State 
of  which  the  owner  is  an  inhabitant:  provided  also,  that  no  imposi- 
tion, duties,  or  restriction  shall  be  laid  by  any  State  on  the  property 
of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of  or  charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  State,  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall,  upon  demand  of  the 
governor  or  executive  power  of  the  State  from  which  he  fled,  be 
delivered  up  and  removed  to  the  State  having  jurisdiction  of  his 
offense. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to 
the  records,  acts,  and  judicial  proceedings  of  the  courts  and  magis- 
trates of  every  other  State. 

Art.  V. — For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed, 
in  such  manner  as  the  Legislature  of  each  State  shall  direct,  to  meet 
in  Congress,  on  the  first  Monday  in  November  in  even,'  year,  with  a 
power  reserved  to  each  State  to  recall  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  their  stead  for 
the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six  years; 
nor  shall  any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States,  for  which  he,  or  another  for  his 
benefit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 


APPENDIX 


379 


Each  State  shall  maintain  its  own  delegates  in  a  meeting  of 
the  States,  and  while  they  act  as  members  of  the  committee  of  the 
States. 

In  determining  questions  in  the  United  States,  in  Congress 
assembled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court,  or  place  out  of  Congress;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments  during  the  time  of  their  going  to  and 
from,  and  attendance  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Art.  VI. — No  State,  without  the  consent  of  the  United  States, 
in  Congress  assembled,  shall  send  any  embassy  to,  or  receive  any 
embassy  from,  or  enter  into  any  conference,  agreement,  alliance, 
or  treaty  with  any  king,  prince,  or  state;  nor  shall  any  person  hold- 
ing any  office  of  profit  or  trust  under  the  United  States,  or  any 
of  them,  accept  of  any  present,  emolument,  office,  or  title  of  any 
kind  whatever  from  any  king,  prince,  or  foreign  state;  nor  shall 
the  United  States  in  Congress  assembled,  or  any  of  them,  grant 
any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation, 
or  alliance  whatever  between  them,  without  the  consent  of  the 
United  States,  in  Congress  assembled,  specifying  accurately  the 
purposes  for  wt^ujh  the  same  is  to  be  entered  into,  and  how  long  it 
shall  continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United  States 
in  Congress  assembled,  with  any  king,  prince,  or  state,  in  pur- 
suance of  any  treaties  already  proposed  by  Congress  to  the  courts 
of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary  by  the 
United  States,  in  Congress  assembled,  for  the  defense  of  such  State, 
or  its  trade;  nor  shall  any  body  of  forces  be  kept  up  by  any  State, 
in  time  of  peace,  except  such  number  only,  as  in  the  judgment  of 
the  United  States,  in  Congress  assembled,  shall  be  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defense  of  such  State;  but 
every  State  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutered,  and  shall  provide  and 
have  constantly  ready  for  use,  in  public  stores,  a  due  number  of 
field  pieces  and  tents,  and  a  proper  quantity  of  arms,  ammunition, 
and  camp  equipage. 


Each  State 
to  maintain 
Its  dele- 
gates. 

Each  State 
one  vote. 

Freedom  of 
speech. 


Xo  embassy 
without 
consent  of 
Congress. 


Xo 

alliances 
among 
States  with- 
out consent 
of  Congress. 

Xo  imposts 
or  duties. 


Xo  military 
or  naval 
force  in 
peace,  ex- 
cept ade- 
quate gar- 
risons. 


380 


APPENDIX 


No  State  to 
engage  in 
war. 


Officers  of 
State  forces 
appointed 
by  legis- 
lature. 


Common 
treasury 
supplied  by 

States. 


Congress 
determines 
on  war  and 
peace. 

No  treaty 
restricting 
certain 
liberties  of 
States. 


No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States,  in  Congress  assembled,  unless  such  State  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a  reso- 
lution being  formed  by  some  nation  of  Indians  to  invade  such  State, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till  the 
United  States,  in  Congress  assembled,  can  be  consulted.  Nor  shall 
any  State  grant  commissions  to  any  ships  or  vessels  of  war,  nor 
letters  of  marque  or  reprisal,  except  it  be  after  a  declaration  of  war 
by  the  United  States,  in  Congress  assembled,  and  then  only  against 
the  kingdom  or  state,  and  the  subjects  thereof,  against  which  war 
has  been  so  declared;  and  under  such  regulations  as  shall  be  estab- 
lished by  the  United  States,  in  Congress  assembled;  unless  such 
State  be  infested  by  pirates,  in  which  case  vessels  of  war  may  be 
fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger  shall 
continue,  or  until  the  United  States,  in  Congress  assembled,  shall 
determine  otherwise. 

Art.  VII. — When  land  forces  are  raised  by  any  State  for  the 
common  defense,  all  officers  of  or  under  the  rank  of  colonel  shall 
be  appointed  by  the  Legislature  of  each  State,  respectively,  by 
whom  such  forces  shall  be  raised,  or  in  such  maimer  as  such  State 
shall  direct,  and  all  vacancies  shall  be  filled  up  by  the  State  which 
first  made  the  appointment. 

Art.  VIII. — All  charges  of  war,  and  all  other  expenses  that 
shall  be  incurred  for  the  common  defense  or  general  welfare,  and 
allowed  by  the  United  States,  in  Congress  assembled,  shall  be  de- 
frayed out  of  the  common  treasurj%  which  shall  be  supplied  by  the 
several  States,  in  proportion  to  the  value  of  all  land  within  each 
State,  granted  to  or  surveyed  for  any  person,  as  such  land  and 
the  buildings  and  improvements  thereon  shall  be  estimated  accord- 
ing to  such  mode  as  the  United  States,  in  Congress  assembled,  shall, 
from  time  to  time,  direct  and  appoint.  The  taxes  for  paying  that 
proportion  shall  be  laid  and  levied  by  the  authority  and  direction 
of  the  Legislatures  of  the  several  States,  within  the  time  agreed 
upon  by  the  LTnited  States,  in  Congress  assembled. 

Art.  IX. — The  United  States,  in  Congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on 
peace  and  war,  except  in  the  cases  mentioned  in  the  sixth  article; 
of  sending  and  receiving  ambassadors;  entering  into  treaties  and 
alliances:  provided,  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  States  shall  be 
restrained  from  imposing  such  imposts  and  duties  on  foreigners, 
as  their  owti  people  are  subjected  to,  or  from  prohibiting  the  expor- 


Al'PENDIX 


381 


between 
States  ap- 
pealed to 
Congress. 


tation  or  importation  of  any  species  of  goods  or  commodities  what- 
soever; of  establishing  rules  for  deciding,  in  all  cases,  what  captures 
on  land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  United  States  shall  be 
divided  or  appropriated;  of  granting  letters  of  marque  and  reprisal 
in  times  of  peace;  appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas,  and  establishing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of  captures: 
provided,  that  no  member  of  Congress  shall  be  appointed  a  judge 
of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last  Differences 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting,  or 
that  hereafter  may  arise,  between  two  or  more  States  concerning 
boundary,  jurisdiction,  or  any  other  cause  whatever;  which  authority 
shall  always  be  exercised  in  the  manner  following:  Whenever 
the  legislative  or  executive  authority,  or  lawful  agent  of  any  State 
in  controversy  with  another,  shall  present  a  petition  to  Congress, 
stating  the  matter  in  question,  and  praying  for  a  hearing,  notice 
thereof  shall  be  given,  by  order  of  Congress,  to  the  Iegislati^■e  or 
executive  authority  of  the  other  State  in  controversy,  and  a  day 
assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint,  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  determining 
the  matter  in  question;  but  if  they  cannot  agree,  Congress  shall  Procedure, 
name  three  persons  out  of  each  of  the  United  States,  and  from  the 
list  of  such  persons  each  party  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced  to  thirteen ; 
and  from  that  number  not  less  than  seven,  nor  more  than  nine 
names,  as  Congress  shall  direct,  shall,  in  the  presence  of  Congress, 
be  drawn  out  by  lot,  and  the  persons  whose  names  shall  be  so  drawn, 
or  any  five  of  them,  shall  be  commissioners  or  judges  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major  part  of  the 
judges  who  shall  hear  the  cause  shall  agree  in  the  determination; 
and  if  either  party  shall  neglect  to  attend  at  the  day  appointed, 
without  showing  reasons,  which  Congress  shall  judge  sufficient,  or 
being  present  shall  refuse  to  strike,  the  Congress  shall  proceed  to 
nominate  three  persons  out  of  each  State,  and  the  Secretary  of 
Congress  shall  strike  in  behalf  of  such  party  absent  or  refusing; 
and  the  judgment  and  sentence  of  the  court  to  be  appointed,  in  the 
manner  before  prescribed,  shall  be  final  and  conclusive;  and  if  any 
of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  to  appear  or  defend  their  claim  or  cause,  the  court  shall,  neverthe- 


382 


APPENDIX 


Congress 
hears  land- 
grant  dis- 
putes. 


Coinage; 
weiglits  and 
measures; 
trade  witli 
Indians. 


Post  offices. 


Appoint- 
ment of 
military 
and  naval 
officers. 


Committee 
of  tiie 
States. 


less,  proceed  to  pronounce  sentence  or  judgment,  which  shall  in  like 
manner  be  final  and  decisive,  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged 
among  the  acts  of  Congress  for  the  security  of  the  parties  concerned : 
provided,  that  every  commissioner,  before  he  sits  in  judgment,  shall 
take  an  oath,  to  be  administered  by  one  of  the  Judges  of  the  Supreme 
or  Superior  Court  of  the  State  where  the  cause  shall  be  tried,  "well 
and  truly  to  hear  and  determine  the  matter  in  question,  according 
to  the  best  of  his  judgment,  without  favor,  affection,  or  hope  of 
reward":  provided,  also,  that  no  State  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdictions 
as  they  may  respect  such  lands,  and  the  States  which  passed  such 
grants,  are  adjusted,  the  said  grants,  or  either  of  them,  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the 
Congress  of  the  United  States,  be  finally  determined  as  near  as 
may  be  in  the  same  manner  as  is  before  described  for  deciding  dis- 
putes respecting  territorial  jurisdiction  between  difTerent  States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the  sole 
and  exclusive  right  and  power  of  regulating  the  alloy  and  value 
of  coin  struck  by  their  own  authority,  or  by  that  of  the  respective 
States;  fixing  the  standard  of  weights  and  measures  throughout 
the  United  States;  regulating  the  trade,  and  managing  all  affairs 
with  the  Indians,  not  members  of  any  of  the  States:  provided,  that 
the  legislative  right  of  any  State,  within  its  ovm.  limits,  be  not 
infringed  or  violated;  establishing  and  regulating  post  offices  from 
one  State  to  another,  throughout  all  the  United  States,  and  exact- 
ing such  postage  on  the  papers  passing  through  the  same  as  may 
be  requisite  to  defray  the  expenses  of  the  said  office;  appointing 
all  officers  of  the  land  forces  in  the  service  of  the  United  States, 
excepting  regimental  officers;  appointing  all  the  officers  of  the 
naval  forces,  and  commissioning  all  officers  whatever  in  the  service 
of  the  United  States;  making  rules  for  the  government  and  regula- 
tion of  the  said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority 
to  appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  de- 
nominated a  "Committee  of  the  States,"  and  to  consist  of  one 
delegate  from  each  State;  and  to  appoint  such  other  committees 
and  civil  officers  as  may  be  necessary  for  managing  the  general 
affairs  of  the  United  States  under  their  direction;  to  appoint  one 


APPENDIX 


383 


of  their  number  to  preside:  provided,  that  no  person  be  allowed  to 
serve  in  the  office  of  President  more  than  one  year  in  any  term  of 
three  years;  to  ascertain  the  necessary  sums  of  money  to  be  raised 
for  the  service  of  the  United  States,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expenses;  to  borrow  money  or 
emit  bills  on  the  credit  of  the  United  States,  transmitting  every 
half  year  to  the  respective  States  an  account  of  the  sums  of  money 
so  borrowed  or  emitted;  to  build  and  equip  a  na^y;  to  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  from  each 
State  for  its  quota,  in  proportion  to  the  number  of  white  inhabit- 
ants in  such  State,  which  requisition  shall  be  binding,  and  there- 
upon the  Legislature  of  each  State  shall  appoint  the  regimental 
officers,  raise  the  men,  and  clothe,  arm,  and  equip  them  in  a  soldier- 
like manner,  at  the  expense  of  the  United  States;  and  the  officers 
and  men  so  clothed,  armed,  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the  United  States,  in 
Congress  assembled.  But  if  the  United  States,  in  Congress  as- 
sembled, shall,  on  consideration  of  circumstances,  judge  proper 
that  any  State  should  not  raise  men,  or  should  raise  a  smaller  number 
than  its  quota,  and  that  any  other  State  should  raise  a  greater 
number  of  men  than  the  quota  thereof,  such  extra  number  shall  be 
raised,  officered,  clothed,  armed,  and  equipped  in  the  same  manner 
as  the  quota  of  such  State,  unless  the  Legislature  of  such  State  shall 
judge  that  such  extra  number  cannot  be  safely  spared  out  of  the 
same,  in  which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip 
as  many  of  such  extra  number  as  they  judge  can  be  safely  spared. 
And  the  officers  and  men  so  clothed,  armed,  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on  by  the 
United  States,  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace, 
nor  enter  into  any  treaties  or  alliances,  nor  coin  money,  nor  regulate 
the  value  thereof,  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defense  and  welfare  of  the  United  States,  or  any  of  them, 
nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United  States, 
nor  appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war 
to  be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander  in  chief  of  the  army  or  navy, 
unless  nine  States  assent  to  the  same;  nor  shall  a  question  on  any 
other  point,  except  for  adjourning  from  day  to  day,  be  determined, 
unless  by  the  votes  of  a  majority  of  the  United  States,  in  Congress 
assembled. 


President 
of  Con- 
gress. 


Borrowing 
money. 


Navy  and 
land  forces. 


Assent  of 
nine  States 
required  on 
important 
measures. 


384 


APPENDIX 


Adjourn- 
iiient. 


Journal. 


Powers  of 
Committee 
of  the 

States. 


Canada 
might  join. 


Public 
credit. 


States  to 
abide  by 
determina- 
tions by 
Congress. 


The  Congress  of  the  United  States  shall  have  pow"ei  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months;  and  shall  publish  the  Journal  of  their 
proceedings  monthly,  except  such  parts  thereof  relating  to  treaties, 
alliances,  or  military  operations,  as  in  their  judgment  require 
secrecy ;  and  the  yeas  and  nays  of  the  delegates  of  each  State  on  any 
question  shall  be  entered  on  the  Journal,  when  it  is  desired  by  any 
delegate ;  and  the  delegates  of  a  State,  or  any  of  them,  at  his  or  their 
request,  shall  be  furnished  with  a  transcript  of  the  said  Journal, 
except  such  parts  as  are  above  excepted,  to  lay  before  the  legis- 
latures of  the  several  States. 

Art.  X. — The  Committee  of  the  States,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of 
the  powers  of  Congress  as  the  United  States,  in  Congress  assembled, 
by  the  consent  of  nine  States,  shall,  from  time  to  time,  think  expe- 
dient to  vest  them  with :  provided,  that  no  power  be  delegated  to  the 
said  committee,  for  the  exercise  of  which,  by  the  Articles  of  Con- 
federation, the  voice  of  nine  States  in  the  Congress  of  the  United 
States  assembled  is  requisite. 

Art.  XI. — Canada  acceding  to  this  Confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  Union;  but  no  other  colony 
shall  be  admitted  into  the  same,  unless  such  admission  be  agreed 
to  by  nine  States. 

Art.  XII. — Ail  bills  of  credit  emitted,  moneys  borrowed  and 
debts  contracted,  by  or  under  the  authority  of  Congress,  before  the 
assembling  of  the  United  States,  in  pursuance  of  the  present  Con- 
federation, shall  be  deemed  and  considered  as  a  charge  against  the 
United  States,  for  payment  and  satisfaction  whereof  the  said  United 
States  and  the  public  faith  are  hereby  solemnly  pledged. 

Art.  XIII. — Every  State  shall  abide  by  the  determinations  of 
the  United  States,  in  Congress  assembled,  on  all  questions  which 
by  this  Confederation  are  submitted  to  them.  And  the  Articles  of 
this  Confederation  shall  be  inviolably  observed  by  every  State, 
and  the  Union  shall  be  perpetual;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterward 
confirmed  by  the  Legislatures  of  every  State. 

And  Whereas,  It  hath  pleased  the  Great  Governor  of  the  world 
to  incline  the  hearts  of  the  Legislatures  we  respectively  represent 
in  Congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said 


APPENDIX 


385 


Articles  of  Confederation  and  perpetual  Union.  Know  ye  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name 
and  in  behalf  of  our  respective  constituents,  fully  and  entirely 
ratify  and  confirm  each  and  every  of  the  said  Articles  of  Con- 
federation and  perpetual  Union,  and  all  and  singular  the  matters 
and  things  therein  contained. 

And  we  do  further  solemnly  plight  and  engage  the  faith  of  our 
respective  constituents,  that  they  shall  abide  by  the  determina- 
tions of  the  United  States,  in  Congress  assembled,  on  all  questions 
which  by  the  said  Confederation  are  submitted  to  them;  and  that 
the  articles  thereof  shall  be  inviolably  observed  by  the  States  we 
respectively  represent,  and  that  the  Union  shall  be  perpetual. 

In  witness  whereof,  we  have  hereunto  set  our  hands  in  Con- 
gress. Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the 
9th  day  of  July,  in  the  year  of  our  Lord,  1778,  and  in  the  3d  year 
of  the  Independence  of  America. 


Ill 

CONSTITUTION  OF  THE  UNITED  STATES 
OF  AMERICA 

We,  the  people  of  the  United  States,  in  order  to  form  a  more  Preamble, 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE  I. 


Section  1. — All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

Sec.  2. — 1.  The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several  States, 
and  the  electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  State  Legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have 
attained  the  age  ot  twenty-five  years  and  been  seven  years  a  citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabit- 
ant of  that  State  in  which  he  shall  be  chosen. 


Legislative 
powers. 

House  of 
Representa- 
tives. 


Eligibility 
of  repre- 
sentatives. 


386 


APPENDIX 


Manner  and 
ratio  of 
representa- 
tion and 
taxation. 


Vacancies 
in  represen- 
tation. 

Spealier 
and  im- 
peachment. 

riie  Senate. 


Choice  of 

one-third 

of  senators 

every 

second 

year. 


Eligibility 
of  senators. 


3.  [Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  accord- 
ing to  their  respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those  bound  to  ser- 
vice for  a  term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons.  The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting  of  the  Congress  of  the 
United  States,  and  wathin  every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  direct.  The  number  of  Rep- 
resentatives shall  not  exceed  one  for  every  thirty  thousand,  but 
each  State  shall  have  at  least  one  Representative;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and 
Providence  Plantations  one,  Connecticut  five.  New  York  six.  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Vir- 
ginia ten,  North  CaroUna  five,  South  Carolina  five,  and   Georgia 

three.] 

This  clause  has  been  superseded,  so  far  as  it  relates  to  representation,  by  Sec- 
tion 2  of  the  Fourteenth  Amendment  to  the  Constitution. 

4.  When  vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fiU 
such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  Speaker 
and  other  officers,  and  shall  have  the  sole  power  of  impeach- 
ment. 

Sec.  3. — 1.  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legislature  thereof, 
for  six  years,  and  each  Senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  Senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year,  of  the  second  class  at 
the  expiration  of  the  fourth  year,  and  of  the  third  class  at  the  expira- 
tion of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second 
year;  and  if  vacancies  happen,  by  resignation  or  otherwise,  during 
the  recess  of  the  Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  Legis- 
lature, which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  attained  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  the 
State  for  which  he  shall  be  chosen. 


APPENDIX 


387 


4.  The  Vice-President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  voice  unless  they  shall  be  equally 
divided. 

5.  The  Senate  shall  choose  their  officers,  and  have  a  President 
pro  tempore,  in  the  absence  of  the  Vice-President,  or  when  he  shall 
exercise  the  office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeachments; 
when  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside;  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office  and  disqualification  to  hold  and  enjoy 
any  office  of  honor,  trust,  or  profit  under  the  United  States;  but  the 
party  convicted  shall,  nevertheless,  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment  according  to  law. 

Sec.  4. — 1.  The  times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives  shall  be  prescribed  in  each  State 
by  the  Legislature  thereof;  but  the  Congress  may  at  any  time,  by 
law,  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall,  by  law,  appoint  a  different  day. 

Sec.  5. — 1 .  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner  and  under  such 
penalties  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may,  in 
their  judgment,  require  secrecy;  and  the  ayes  and  noes  of  the  mem- 
bers of  either  house,  on  any  question,  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  house,  during  the  session  of  Congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nnr  to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 


President  of 
the  Senate. 


President 
pro  tern. 

Senate's 
power  to 
try  ini- 
peacli- 
nients. 

Penalty  in 
cases  of 
impeach- 
ment. 


Congres- 
sional 
elections. 


Meeting  of 
Congress. 

Organiza- 
tion of 
Congress. 


Rules  of 
proceedings. 
Punish- 
ment of 
members. 

Journal  of 
proceedings, 


Adjourn- 
ment. 


388 


APPExNDIX 


Compensa- 
tion and 
privileges 
of  congress- 
men. 


Congress- 
men not  to 
hold  civil 
office. 


Revenue 
bills. 


Bills,  etc., 
to  be  pre- 
sented to 
the  Presi- 
dent of  the 
United 
States. 


Sec.  6. — 1.  The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  questioned  in 
any  other  place. 

2.  No  Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased,  during  such  time;  and 
no  person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

[See  also  Section  3  of  the  Fourteenth  Amendment.] 

Sec.  7. — 1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives,  but  the  Senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  becomes  a  law,  be  presented 
to  the  President  of  the  United  States;  if  he  approve,  he  shall  sign 
it,  but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house 
in  which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other  house, 
by  which  it  shall  likewise  be  reconsidered,  and  if  approved  by 
two-thirds  of  that  house  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  aj^es  and 
noes;  and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  house,  respectively.  If  any 
bill  shall  not  be  returned  by  the  President  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall 
be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress, 
by  their  adjournment,  prevent  its  return,  in  which  case  it  shall  not 
be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  the  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  adjournment),  shall  be  presented  to  the 
President  of  the  United  States;  and,  before  the  same  shall  take 
effect,  shall  be  approved  by  him,  or,  being  disapproved  by  him, 
shall  be  repassed  by  two-thirds  of  the  Senate  and  House  of  Repre- 


APPENDIX 


389 


scntatives,  according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 

Sec.  8. —  I.  The  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defense  and  general  welfare  of  the  United  States; 
but  ail  duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States. 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States. 

5.  To  coin  money,  regulate  the  value  thereof  and  of  foreign  coins, 
and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States. 

7.  To  establish  post  offices  and  post  roads. 

8.  To  promote  the  progress  of  science  and  useful  arts  by  securing, 
for  limited  times,  to  authors  and  inventors,  the  exclusive  right  to 
their  respective  writings  and  discoveries. 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court. 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offenses  against  the  laws  of  nations. 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water. 

12.  To  raise  and  support  armies;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years. 

13.  To  provide  and  maintain  a  navy. 

14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces. 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions. 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States,  respec- 
tivrly,  the  appointment  of  the  officers,  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by  Congress. 

17.  To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States,  and  the  acceptance  of  Congress,  become  the 
seat  of  government  of  the  United  States,  and  to  exercise  like  authority 
over  all  places  purchased  by  the  consent  of  the  legislature  of  the 


Powers  of 
Congress. 


Loans. 
Commerce. 

Naturaliza- 
tion. 

Coin. 

Counter- 
feitinK. 

Post  offlce. 

Patents  and 
copyrights. 

Courts. 
Piracies. 

War. 


Navy. 

Military 
and  naval 
ruh's. 
Militia. 


Federal 
district  and 
other 
places. 


390 


APPENDIX 


Implied 
powers. 


Tax  on 
importation 
of  slaves. 


Writ  of 
habeas 
corpus. 

Ex  post 
facto  law. 

Direct 
taxes. 

Free  trade 
among  the 
States. 
No  com- 
mercial dis- 
crimination 
between 
States. 

Drawing 
money 
from 
treasury. 

Titles  of 
nobility  in- 
terdicted. 


Powers 
denied  to 
the  States. 


State  in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dqckyards,  and  other  needful  buildings. 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

[For  other  powers,  see  Article  II,  Section  1;  Article  III,  Sections 
2  and  3;  Article  IV,  Sections  1-3;  and  Article  V.] 

Sec.  9. — 1.  The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit,  shall  not 
be  prohibited  by  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight;  but  a  tax  or  duty  may  be  imposed  on  such  im- 
portation, not  exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it. 

3.  No  bill  of  attainder  or  ez  post  facto  law  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

6.  No  preference  shall  be  given,  by  any  regulation  of  commerce 
or  revenue,  to  the  ports  of  one  State  over  those  of  another;  nor 
shall  vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

7.  No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United  States; 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  State. 

Sec.  10. — 1.  No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation;  grant  letters  of  marque  and  reprisal;  coin  money; 
emit  bills  of  credit;  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any 


APPENDIX 


391 


impost  or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
Congress. 

3.  No  State  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter 
into  any  agreement  or  compact  with  another  State  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

Section  1. — 1.  The  Executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  and,  together  with  the  Vice-President 
chosen  for  the  same  term,  be  elected  as  follows: 

2.  Each  State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  Electors  equal  to  the  whole  number 
of  Senators  and  Representatives  to  which  the  State  may  be  entitled 
in  the  Congress;  but  no  Senator  or  Representative,  or  person  holding 
an  office  of  trust  or  profit  under  the  United  States,  shall  be  ap- 
pointed an  Elector. 

3.  [The  Electors  shall  meet  in  their  respective  States  and  vote, 
by  ballot,  for  two  persons,  of  whom  one  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes 
for  each;  which  list  they  shall  sign  and  certify,  and  transmit,  sealed, 
to  the  seat  of  the  government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in 
the  presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person 
having  the  greatest  number  of  votes  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  majority,  and  have  an 
equal  number  of  votes,  then  the  House  of  Representatives  shall 
immediately  choose  by  ballot  one  of  them  for  President;  and  if 
no  person  have  a  majority,  then  from  the  five  highest  on  the  list, 
the  said  house  shall,  in  like  manner,  choose  the  President.  But  in 
choosing  the  President  the  vote  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of  the  States, 


The  Execu- 
tive power. 


Election  of 
President 
and  Vice- 
President. 


392 


APPENDIX 


Time  of 
choosing 
electors  and 
casting  elec- 
toral vote, 
llequire- 
nients  for 
offlce  of 
President. 


Proviso  in 
case  of 
death,  etc., 
of  the 
President. 


Compensa- 
tion of 
President. 


President's 
oath  of 
otfice. 


and  a  majority  of  all  the  States  shall  be  ncesaary  to  a  choice.  In 
every  case  after  the  choice  of  the  President,  the  person  having  the 
greatest  number  of  votes  of  the  Electors  shall  be  the  Vice-President. 
But  if  there  should  remain  two  or  more  who  have  equal  votes,  the 
Senate  shall  choose  from  them,  by  ballot,  the  Vice-President.] 

This  clause  has  been  superseded  by  the  Twelfth  Amendment  to  the  Constitution. 

4.  The  Congress  may  determine  the  time  of  choosing  the  Elec- 
tors, and  the  day  on  which  they  shall  give  their  votes;  which  day 
shall  be  the  same  throughout  the  United  States. 

5.  No  person  except  a  natural-born  citizen  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  the  age  of  thirty- 
five  years,  and  been  fourteen  years  a  resident  within  the  United 
States. 

[See  also  Article  II,  Section  1,  and  Fourteenth  Amendment.] 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  Vice-President, 
and  the  Congress  may,  by  law,  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as  President,  and 
such  officer  shall  act  accordingly,  until  the  disability  be  removed, 
or  a  President  shall  be  elected. 

7  The  President  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he  shall 
not  receive  within  that  period  any  other  emolument  from  the  United 
States  or  any  of  them. 

8.  Before  he  enters  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation:  "I  do  solemnly  swear  (or  affirm) 
that  I  will  faithfully  execute  the  office  of  President  of  the  United 
States,  and  will,  to  the  best  of  my  ability,  preserve,  protect,  and 
defend  the  Constitution  of  the  United  States." 


Note. — Agreeably  with  the  powers  conferred  by  Clause  6,  Section  1 ,  Article  II, 
of  the  Constitution,  Congress  in  1 886  provided  for  the  succession  to  the  Presidency 
in  case  of  the  removal,  death,  resignation,  or  inability  of  the  President  or  Vice- 
President  by  directing  that  the  office  devolve  first  upon  the  Secretary  of  State, 
and  in  case  of  his  inability,  for  any  reason,  to  perform  its  duties,  it  should  pass, 
successively,  upon  similar  conditions,  to  the  Secretary  of  the  Treasury,  Secretary 
of  War,  Attorney-General,  Postmaster-General,  Secretary  of  the  Navy,  and  Sec- 
retary of  the  Interior.  If,  however,  any  one  of  these  officers  should  be  of  foreign 
birth,  the  Presidency  passes  to  the  next  named  in  the  Ust. 


APPENDIX 


393 


Sec.  2. — 1.  The  President  shall  be  commander  in  chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  militia  of  the 
several  States  when  called  into  the  actual  service  of  the  United 
States;  he  may  require  the  opinion,  in  writing,  of  the  principal 
ofRcer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur;  and  he  shall  nominate,  and,  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  appoint  ambassadors,  other  pub- 
lic ministers  and  consuls,  Judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  established  by 
law;  but  the  Congress  may,  by  law,  vest  the  appointment  of  such 
inferior  officers  as  they  think  proper  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  commis- 
sions, which  shall  expire  at  the  end  of  their  next  session. 

Sec.  3. — He  shall,  from  time  to  time,  give  to  the  Congress  infor- 
mation of  the  state  of  the  Union,  and  recommend  to  their  consid- 
eration such  measures  as  he  shall  judge  necessarj'  and  expedient; 
he  may,  on  extraordinary'  occasions,  convene  both  houses,  or  either 
of  them,  and,  in  case  of  disagreement  between  them  with  respect 
to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as 
he  shall  think  proper;  he  shall  receive  ambassadors  and  other  public 
ministers;  he  shall  take  care  that  the  laws  be  faithfully  executed, 
and  shall  commission  all  the  officers  of  the  United  States. 

[See  also  Article  I,  Section  5.] 

Sec.  4. — The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States  shall  be  removed  from  office  on  impeachment 
for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

[<See  also  Article  I,  Sections  2  and  3.] 

ARTICLE  III. 

Section  1. — The  judicial  power  of  the  United  States  shall  be 

vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 

Congress  may  from  time  to  time  ordain  and  establish.     The  Judges, 

both  of  the  Supreme  and  inferior  courts,  shall  hold  their  offices 

26 


Powers  and 
duties  of 
the  Presi- 
dent. 


Treaties 
and  ap- 
pointments. 


Filling 
vacancies. 


Removal 
from  office 
of  Presi- 
dent. 


Judicial 
power  of 
the  United 
States. 


394 


APPENDIX 


Extent  of 
judicial 
power  of 
the  United 
States. 


Rules  of 
court  pro- 
cedure. 


Jury. 


Treason: 
how  defined 
and  pun- 
ished. 


during  good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation  which  shall  not  be  diminished  during 
their  continuance  in  office. 

[See  also  Eleventh  Amendment.^ 

Sec.  2. — 1.  The  judicial  power  shall  extend  to  aU  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shaU  be  made,  under  their 
authority;  to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls;  to  all  cases  of  admiralty  and  maritime  juris- 
diction; to  controversies  to  which  the  United  States  shall  be  a  party; 
to  controversies  between  two  or  more  States;  between  a  State  and 
citizens  of  another  State;  between  citizens  of  different  States; 
between  citizens  of  the  same  State  claiming  lands  under  grants  of 
different  States;  and  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  aU  the  other  cases  before 
mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions  and  under  such  regula- 
tions as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jur>';  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed;  but  ■when  not  committed  w^thin 
any  State,  the  trial  shall  be  put  at  such  place  or  places  as  the  Con- 
gress may,  by  law,  have  directed. 

[See  also  Fifth,  Sixth,  Seventh,  and  Eighth  Amendments.] 

Sec.  3. — 1.  Treason  against  the  United  States  shall  consist  only 

in  levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 

them  aid  and  comfort. 

2.  No  person  shall  be  convicted  of  treason,  imless  on  the  testi- 
mony of  two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

3.  The  Congress  shall  have  power  to  declare  the  punishment  of 
treason;  but  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attainted. 


State  acts 
and  rec- 
ords. 


ARTICLE  IV. 

Section  1. — FuU  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State.     And  the  Congress  may,  by  general  laws,  prescribe  the  man- 


APPENDIX 


395 


ner  in  which  such  acts,  records,  and  proceedings  shall  be  proved,  and 
the  effect  thereof. 

[See  also  Fourteenth  Amendment.'] 

Sec.  2. — 1.  The  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  another  State, 
shall,  on  demand  of  the  executive  authority  of  the  State  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  crime. 

3.  No  person  held  to  serv'ice  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

Sec.  3. — 1.  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State;  nor  any  State  be  formed  by 
the  junction  of  two  or  more  States,  or  parts  of  States,  without  the 
consent  of  the  Legislatures  of  the  States  concerned,  as  well  as  of 
Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this  Con- 
stitution shall  be  so  construed  as  to  prejudice  any  claims  of  the 
United  States,  or  of  any  particular  State. 

Sec.  4. — The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion  ;  and,  on  application  of  the  Legislature 
or  of  the  Executive  (when  the  Legislature  cannot  be  convened), 
against  domestic  violence. 

ARTICLE  V. 

Section  1. — The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessan,^,  shall  propose  amendments  to  this  Consti- 
tution, or,  on  the  application  of  the  Legislatures  of  two-thirds  of 
the  several  States,  shall  call  a  convention  for  proposing  amendments, 
which,  in  either  case,  shall  be  valid,  to  all  intents  and  purposes,  as 
part  of  this  Constitution,  when  ratified  by  the  Legislatures  of  three- 
fourths  of  the  several  States  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  Congress;  provided,  that  no  amendment  which  may  be  made 


Privileges 
of  citizensi 

Fugitives 

from 

justice. 


Fugitive 
slaves. 


Admission 
of  new 
States. 


Territories. 


Republican 

government 

guaranteed. 


How 
amend- 
ments to  the 
Constitu- 
tion shall  be 
made. 


396 


APPENDIX 


Debts. 


The  Con- 
stitution 
the  supreme 
law. 


Support  of 
the  Consti- 
tution re- 
quired in 
official 
oath. 


Ratifica- 
tion. 


prior  to  the  year  one  thousand  eight  hundred  and  eight  shall,  in 
any  manner,  affect  the  first  and  fourth  clauses  in  the  ninth  section 
of  the  first  article;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

Section  1. — 1.  All  debts  contracted  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States,  under  this  Constitution,  as  under  the 
Confederation. 

[See  also  Fourteenth  Amendment,  Section  4.] 

2.  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound,  by  oath  or  affirmation,  to  support  this  Constitu- 
tion; but  no  religious  test  shall  ever  be  required  as  a  qualification 
to  any  office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

Section  1. — The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  States  present, 
the  seventeenth  day  of  September,  in  the  year  of  our  Lord  one 
thousand  seven  hundred  and  eighty-seven,  and  of  the  independ- 
ence of  the  United  States  of  America  the  twelfth.  In  witness 
whereof,  we  have  hereunto  subscribed  our  names. 

GEORGE  WASHINGTON 
President,  and  Deputy  from  Virginia. 

CONNECTICUT. 

WILLIAM    SAMUEL    JOHN- 
SON, 
ROGER  SHERMAN. 


NEW    HAMPSHIRE 

JOHN  LANGDON, 
NICHOLAS  OILMAN. 


MASSACHUSETTS. 

NATHANIEL  GORHAM, 
RUFUS  KING. 


NEW    YORK. 

ALEXANDER  HAMILTON. 


APPENDIX 


397 


NEW   JERSEY. 

WILLIAM  LIVINGSTON, 
DAVID  BREARLY, 
WILLIAM  PATTERSON, 
JONATHAN  DAYTON. 

PENNSYLVANIA. 

BENJAMIN  FRANKLIN, 
THOMAS  MIFFLIN, 
ROBERT  MORRIS, 
GEORGE  CLYMER, 
THOMAS  FITZSIMONS, 
JARED  INGERSOLL, 
JAMES  WILSON, 
GOUVERNEUR  MORRIS. 

DELAWARE. 

GEORGE  READ, 
GUNNING  BEDFORD,  Jr., 
JOHN  DICKINSON, 
RICHARD  BASSETT, 
JACOB  BROOM. 


MARYLAND. 

JAMES  McHENRY, 
DANIEL  OF  St.  Th.  JENIFER, 
DANIEL  CARROLL. 

VIRGINIA. 

JOHN  BLAIR, 
JAMES  MADISON,  Jr. 

NORTH    CAROLINA. 

WILLIAM  BLOUNT, 
RICHARD  DOBBS  SPAIGHT, 
HUGH  WILLIAMSON. 

SOUTH    CAROLINA. 

JOHN  RUTLEDGE, 
CHARLES  C.  PINCKNEY, 
CHARLES  PINCKNEY, 
PIERCE  BUTLER. 

GEORGIA. 

WILLIAM  FEW, 
ABRAHAM  BALDWIN. 


Attest: 


WILLIAM  JACKSON, 

Secretary, 


AMENDMENTS 


ARTICLE  I. 

[The  first  ten  Articles  were  proposed  September  25,  1789,  and  rati- 
fied December  15,  1791.] 

Section  1. — Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise  thereof,  or 
abridging  the  freedom  of  speech  or  of  the  press;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  Government  for 
a  redress  of  grievances. 


Religious 
toleration. 

Freedom  of 
speech  and 
of  press. 


ARTICLE  II 

Section    1. — A  well-regnlated    militia  being  necessar\'  to    the    Risht  fo 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear  arms    ^^^'  arms, 
shall  not  be  infringed. 


398 


APPENDIX 


Billeting  of 
soldiers. 


ARTICLE  III. 

Section  1. — No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner;  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 


Seizure, 
warrants, 
and 
seizures. 


Conditions 
of  trial 
for  capital 
crime. 


Mode  of 
trial. 


Judicial 
safe- 
guards. 


ARTICLE  IV. 

Section  1. — The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall  issue  but 
upon  reasonable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched  and  the  person  or  things 
to  be  seized. 

ARTICLE  V. 

Section  L — No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  offense  to  be 
twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself;  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation. 

ARTICLE  VI. 

Section  1. — In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law,  and 
to  be  informed  of  the  nature  and  cause  of  the  accusation;  to  be 
confronted  with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assist- 
ance of  counsel  for  his  defense. 


ARTICLE  VII. 

Trial  by  Section  1. — In  suits  at  common  law,  where  the  value  in  con- 

jury,  troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 

be  preserved;  and  no  fact,  tried  by  jurJ^  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States  than  according  to  the 
rules  of  common  law. 


APPENDIX 


399 


ARTICLE  VIII. 

Section  1. — Excessive  bail  shall  not  be  required,  nor  excessive    Bails,  fines, 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted.  punish- 


ments. 


ARTICLE  IX. 


Section    1. — The  enumeration    in  the   Constitution   of  certain    Constitu- 

riehts  shall  not  be  construed  to  deny  or  disparage  others  retained    tlo^i^l  *"d 
,       . ,  ,  State  rights, 

by  the  people. 

ARTICLE  X. 

Section  1. — The  powers  not  delegated  to  the  United  States  by    Powers  re- 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserv'ed  to    served  to 
the  States,  respectively,  or  to  the  people. 

ARTICLE  XL 

Section  1. — The  judicial  power  of  the  United  States  shall  not    Limitation 
be  construed  to  extend  to  any  suit  in  law  or  equity,  commenced    of  judicial 
or  prosecuted  against  one  of  the  United  States  by  the  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  State. — 
[Proposed  March  5,  1794 ;  ratified  January  8,  179S.] 


and  Vice- 
President» 


ARTICLE  XII. 

Section  1. — The  electors  shall  meet  in  their  respective  States,  Election  of 
and  vote  by  ballot  for  President  and  Vice-President,  one  of  whom,  President 
at  least,  shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice- 
President;  and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  President,  and  of  all  persons  voted  for  as  Vice-President, 
and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit,  sealed,  to  the  seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate.  The  Presi- 
dent of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall  then 
be  counted.  The  person  having  the  greatest  number  of  votes  for 
President  shall  be  the  President,  if  such  a  number  be  a  majority 
of  the  whole  number  of  Electors  appointed;  and  if  no  person  have 
such  a  majority,  then  from  the  persons  having  the  highest  numbers, 
not  exceeding  three,  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by  ballot,  the 


400 


APPENDIX 


President.  But  in  choosing  the  President,  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one  vote;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President,  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  following,  then  the 
Vice-President  shall  act  as  President,  as  in  case  of  the  death  or 
other  constitutional  disability  of  the  President.  The  person  having 
the  greatest  number  of  votes  as  Vice-President  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed;  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list  the  Senate  shall  choose  the 
Vice-President;  a  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  Senators,  and  a  majority  of  the  whole 
number  shall  be  necessary  to  a  choice.  But  no  person  constitution- 
ally ineligible  to  the  office  of  President  shall  be  eligible  to  that  of 
Vice-President  of  the  United  States. — [Proposed  December  12,  1803 ; 
ratified  September  25,  IS04.] 

ARTICLE  XIII. 

Abolition  Section  1. — Neither  slavery  nor  involimtary  servitude,  except  as 

of  slavery.  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  sub- 
ject to  their  jurisdiction. 

Sec.  2. — Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. — [Declared  ratified  December  18,  1865.'] 


Privileges 
of  citizen- 
ship pro- 
tected. 


Apportion- 
ment of 
Represent- 
atives. 


ARTICLE  XIV. 

Section  1. — All  persons  bom  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws. 

Sec.  2. — Representatives  shall  be  apportioned  among  the  several 
States,  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice  of  Electors 


APPENDIX 


401 


for  President  and  Vice-President  of  the  United  States,  Repre- 
sentatives in  Congress,  the  executive  and  judicial  officers  of  a  State, 
or  the  members  of  the  Legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one  years  of  age  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion,  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of- 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State. 

Sec.  3. — No  person  shall  be  a  Senator  or  Representative  in  Con- 
gress, or  Elector  of  President  and  Vice-President,  or  hold  any  office, 
civil  or  military,  imder  the  United  States,  or  xmder  any  State,  who, 
having  previously  taken  an  oath  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State  Legisla- 
ture, or  as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in  insur- 
rection or  rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds  of 
each  house,  remove  such  disability. 

Sec.  4. — ^The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppressing  insurrection  or  rebellion , 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  anj^  claim  for 
the  loss  or  emancipation  of  any  slave;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

Sec.  5. — ^The  Congress  shall  have  power  to  enforce,  by  appropri- 
ate legislation,  the  provisions  of  this  article. — [Declared  ratified 
July  28,  1868.] 


Concerning 
those  who 
rebel 

against  the 
United 
States. 


Validity  of 
the  public 
debt. 


ARTICLE  XV. 

Section  1. — The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Sec.  2. — The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. — [Declared  ratified,  March  30,  1870.] 


Rights  of 
citizens  not 
to  be 
abridged. 


402 


APPENDIX 


IV 

THE    PRESIDENT'S    INSTRUCTIONS  TO  THE  BOARD 

OF   COMMISSIONERS  TO  THE   PHILIPPINE 

ISLANDS. 

War  Department, 
Washington,  April  7,  1900. 
Sir  :     I  transmit  to  you  herewith  the  instructions  of  the  President 
for  the  guidance  of  yourself  and  your  associates  as  commissioners 
to  the  Philippine  Islands. 

Very  respectfully,  Elihu  Root, 

Secretary  of  War. 

Hon.  William  H.  Taft, 

President  Board  of  Commissioners 

to  the  Philippine  Islands. 


Members 
of  corn- 
mission. 


Executive  Mansion,  April  7,  1900. 

Sir:  In  the  message  transmitted  to  the  Congress  on  the  5th  of 
December,  1899,  I  said,  speaking  of  the  Philippine  Islands:  "As 
long  as  the  insurrection  continues  the  military  arm  must  necessarily 
be  supreme.  But  there  is  no  reason  why  steps  should  not  be  taken 
from  time  to  time  to  inaugurate  governments,  essentially  popular 
in  their  form,  as  fast  as  territory  is  held  and  controlled  by  our  troops. 
To  this  end  I  am  considering  the  advisability  of  the  return  of  the 
commission,  or  such  of  the  members  thereof  as  can  be  secured,  to 
aid  the  existing  authorities  and  facilitate  this  work  throughout  the 
islands." 

To  give  effect  to  the  intention  thus  expressed,  I  have  appointed 
Hon.  WiUiam  H.  Taft,  of  Ohio;  Prof.  Dean  C.  Worcester,  of  Michi- 
gan; Hon.  Luke  E.  Wright,  of  Tennessee;  Hon.  Henry  C.  Ide,  of 
Vermont,  and  Prof.  Bernard  Moses,  of  California,  commissioners 
to  the  Philippine  Islands,  to  continue  and  perfect  the  work  of  or- 
ganizing and  establishing  civil  government  already  commenced  by 
the  military  authorities,  subject  in  all  respects  to  any  laws  which 
Congress  may  hereafter  enact. 

The  commissioners  named  wiU  meet  and  act  as  a  board,  and  the 
Hon.  William  H.  Taft  is  designated  as  president  of  the  board.  It 
is  probable  that  the  transfer  of  authority  from  military  command- 


APPENDIX 


403 


ers  to  civil  officers  viill  be  gradual  and  will  occupy  a  considerable 
period.  Its  successful  accomplishment  and  the  maintenance  of 
peace  and  order  in  the  meantime  will  require  the  most  perfect  co- 
operation between  the  civil  and  military  authorities  in  the  islands, 
and  both  should  be  directed  during  the  transition  period  by  the  same 
executive  department.  The  commission  will  therefore  report  to 
the  Secretary  of  War,  and  all  their  actions  will  be  subject  to  your 
approval  and  control. 

You  will  instruct  the  commission  to  proceed  to  the  city  of  Manila, 
where  they  will  make  their  principal  office,  and  to  communicate 
with  the  Military  Governor  of  the  Philippine  Islands,  whom  you 
will  at  the  same  time  direct  to  render  to  them  every  assistance  within 
his  power  in  the  performance  of  their  duties.  Without  hampering 
them  by  too  specific  instructions,  they  should  in  general  be  enjoined, 
after  making  therriselves  familiar  with  the  conditions  and  needs  of 
the  country,  to  devote  their  attention  in  the  first  instance  to  the 
establishment  of  municipal  governments  in  which  the  natives  of 
the  islands,  both  in  the  cities  and  in  the  rural  communities,  shall 
be  afforded  the  opportunity  to  manage  their  own  local  affairs  to  the 
fullest  extent  of  which  they  are  capable,  and  subject  to  the  least 
degree  of  supervision  and  control  which  a  careful  study  of  their 
capacities  and  observation  of  the  workings  of  native  control  show 
to  be  consistent  with  the  maintenance  of  law,  order,  and  loyalty. 
The  next  subject  in  order  of  importance  should  be  the  organization 
of  government  in  the  larger  administrative  divisions,  corresponding 
to  counties,  departments,  or  provinces,  in  which  the  common  interests 
of  many  or  several  municipalities,  falling  within  the  same  tribal 
lines  or  the  same  natural  geographical  limits,  may  best  be  subserved 
by  a  common  administration.  Whenever  the  commission  is  of  the 
opinion  that  the  condition  of  affairs  in  the  islands  is  such  that  the 
central  administration  may  safely  be  transferred  from  military  to 
civil  control,  they  will  report  that  conclusion  to  you,  with  their 
recommendations  as  to  the  form  of  central  government  to  be  estab- 
lished for  the  purpose  of  taking  over  the  control. 

Beginning  with  the  first  day  of  September,  1900,  the  authority  to 
exercise,  subject  to  my  approval,  through  the  Secretarj^  of  \^'ar, 
that  part  of  the  power  of  government  in  the  Philippine  Islands 
which  is  of  a  legislative  nature  is  to  be  transferred  from  the  military 
governor  of  the  islands  to  this  commission,  to  be  thereafter  exercised 
by  them  in  the  place  and  stead  of  the  military  governor,  under  such 
rules  and  regulations  as  you  shall  prescribe,  until  the  establishment 
of  the  civil  central  government  for  the  islands  contemplated  in  the 


To  report 
to  Secretary 
of  War. 


Municipal 
govern- 
ments to  be 
organized 
first. 


Then  pro- 
vincial gov- 
ernments. 


Beginning 
of  commis- 
sion's legis- 
lative 
power. 


404 


APPENDIX 


Scope  of 
power. 


Military 
governor  to 
remain 
temporarily 
chief  ex- 
ecutive. 


Military 

posts 

continued. 


last  foregoing  paragraph,  or  until  Congress  shall  otherwise  provide. 
Exercise  of  this  legislative  authority  will  include  the  making  of  rules 
and  orders,  having  the  effect  of  law,  for  the  raising  of  revenue  by- 
taxes,  customs  duties,  and  imposts;  the  appropriation  and  expendi- 
ture of  public  funds  of  the  islands;  the  establishment  of  an  edu- 
cational system  throughout  the  islands;  the  establishment  of  a 
system  to  secure  an  efficient  civil  service;  the  organization  and 
establishment  of  courts  ;  the  organization  and  establishment  of 
municipal  and  departmental  governments,  and  all  other  matters  of 
a  civil  nature  for  which  the  military  governor  is  now  competent  to 
provide  by  rules  or  orders  of  a  legislative  character. 

The  commission  will  also  have  power,  during  the  same  period, 
to  appoint  to  office  such  officers  under  the  judicial,  educational, 
and  civil-service  systems,  and  in  the  mimicipal  and  departmental 
governments,  as  shall  be  provided  for.  Until  the  complete  transfer 
of  control  the  military  governor  will  remain  the  chief  executive 
head  of  the  government  of  the  islands,  and  will  exercise  the  executive 
authority  now  possessed  by  him  and  not  herein  expressly  assigned 
to  the  commission,  subject,  however,  to  the  rules  and  orders  en- 
acted by  the  commission  in  the  exercise  of  the  legislative  powers 
conferred  upon  them.  In  the  meantime  the  municipal  and  depart- 
mental governments  will  continue  to  report  to  the  military  governor, 
and  be  subject  to  his  administrative  supervision  and  control,  under 
your  direction;  but  that  supervision  and  control  will  be  confined 
within  the  narrowest  limits  consistent  with  the  requirements  that 
the  powers  of  government  in  the  municipalities  and  departments 
shall  be  honestly  and  effectively  exercised  and  that  law  and  order 
and  individual  freedom  shall  be  maintained. 

All  legislative  rules  and  orders,  establishments  of  government, 
and  appointments  to  office  by  the  commission  will  take  efifect 
immediately,  or  at  such  times  as  they  shall  designate,  subject  to 
your  approval  and  action  upon  the  coming  in  of  the  commission's 
reports,  which  are  to  be  made  from  time  to  time  as  their  action  is 
taken.  Wherever  civil  governments  are  constituted  under  the 
direction  of  the  commission,  such  military  posts,  garrisons,  and  forces 
will  be  continued  for  the  suppression  of  insurrection  and  brigandage, 
and  the  maintenance  of  law  and  order,  as  the  military  commander 
shall  deem  requisite,  and  the  military  forces  shall  be  at  all  times 
subject  under  his  orders  to  the  call  of  the  civil  authorities  for  the 
maintenance  of  law  and  order  and  the  enforcement  of  their  authority. 
In  the  establishment  of  municipal  governments  the  commission 
will  take  as  the  basis  of  their  work  the  governments  established  by 


APPENDIX 


405 


the  military  governor  under  his  order  of  August  8,  1899,  and  under 
the  report  of  the  board  constituted  by  the  military  governor  by  his 
order  of  January  29,  1900,  to  formulate  and  report  a  plan  of  mu- 
nicipal government,  of  which  his  honor  Cayetano  Arellano,  president 
of  the  Audiencia,  was  chairman,  and  they  will  give  to  the  conclu- 
sions of  that  board  the  weight  and  consideration  which  the  high 
character  and  distinguished  abilities  of  its  members  justify.  In 
the  constitution  of  department  or  provincial  governments  they  will 
give  especial  attention  to  the  existing  government  of  the  Island  of 
Negros,  constituted  with  the  approval  of  the  people  of  that  island, 
under  the  order  of  the  military  governor  of  July  22,  1899,  and  after 
verifying,  so  far  as  may  be  practicable,  the  reports  of  the  successful 
working  of  that  government,  they  will  be  guided  by  the  experience 
thus  acquired,  so  far  as  it  may  be  applicable  to  the  condition  exist- 
ing in  other  portions  of  the  Philippines.  They  will  avail  themselves, 
to  the  fullest  degree  practicable,  of  the  conclusions  reached  by  the 
previous  commission  to  the  Philippines. 

In  the  distribution  of  powers  among  the  governments  organized 
by  the  commission,  the  presumption  is  always  to  be  in  favor  of  the 
smaller  subdivision,  so  that  all  the  powers  which  can  properly  be 
exercised  by  the  municipal  government  shall  be  vested  in  that  govern- 
ment, and  all  the  powers  of  a  more  general  character  which  can  be 
exercised  by  the  departmental  government  shall  be  vested  in  that 
government,  and  so  that  in  the  governmental  system,  which  is  the 
result  of  the  process,  the  central  government  of  the  islands,  following 
the  example  of  the  distribution  of  the  powers  between  the  States 
and  the  national  Government  of  the  United  States,  shall  have  no 
direct  administration  except  of  matters  of  purely  general  concern, 
and  shall  have  only  such  supervision  and  control  over  local  govern- 
ments as  may  be  necessary  to  secure  and  enforce  faithful  and  efficient 
administration  by  local  officers. 

The  many  different  degrees  of  ci\'ilization  and  varieties  of  custom 
and  capacity  among  the  people  of  the  different  islands  preclude  very 
definite  instruction  as  to  the  part  which  the  people  shall  take  in  the 
selection  of  their  own  officers;  but  these  general  rules  are  to  be 
observed:  That  in  all  cases  the  municipal  officers  who  administer 
the  local  affairs  of  the  people  are  to  be  selected  by  the  people,  and 
that  wherever  officers  of  more  extended  jurisdiction  are  to  be  selected, 
in  any  way,  natives  of  the  islands  are  to  be  preferred,  and,  if  they  can 
be  found  competent  and  willing  to  perform  the  duties,  they  are  to 
receive  the  offices  in  preference  to  any  others.  It  will  be  necessarj' 
to  fill  some  offices  for  the  present  with  Americans  which  after  a  time 


Govern- 
ment of 
Xegros. 


Presump- 
tion of 
power  in 
favor  of 
smaller 
political 
unit. 


Natives  to 
be  preferred 
for  offices. 


406 


APPENDIX 


Merit  sys- 
tem for 
civil  service 
to  be  en- 
forced. 


Well-being 
of  Filipinos 
aim  of  gov- 
ernment. 


American 
principles 
to  be  main- 
tained. 


Bill  of 
rights. 


may  well  be  filled  by  natives  of  the  islands.  As  soon  as  practicable 
a  system  for  ascertaining  the  merit  and  fitness  of  candidates  for 
civil  office  should  be  put  in  force.  An  indispensable  qualification 
for  all  offices  and  positions  of  trust  and  authority  in  the  islands  must 
be  absolute  and  unconditional  loyalty  to  the  United  States,  and 
absolute  and  unhampered  authority  and  power  to  remove  and 
punish  any  officer  deviating  from  that  standard  must  at  all  times  be 
retained  in  the  hands  of  the  central  authority  of  the  islands. 

In  all  the  forms  of  government  and  administrative  provisions 
which  they  are  authorized  to  prescribe,  the  commission  should  i  ear 
in  mind  that  the  government  which  they  are  establishing  is  designed 
not  for  our  satisfaction,  or  for  the  expression  of  our  theoretical 
views,  but  for  the  happiness,  peace,  and  prosperity  of  the  people  of 
the  Philippine  Islands ;  and  the  measures  adopted  should  be  made  to 
conform  to  their  customs,  their  habits,  and  even  their  prejudices,  to 
the  fullest  extent  consistent  with  the  accomplishment  of  the  indis- 
pensable requisites  of  just  and  effective  government.  At  the  same 
time  the  commission  should  bear  in  mind,  and  the  people  of  the 
islands  should  be  made  plainly  to  understand,  that  there  are  cer- 
tain great  principles  of  government  which  have  been  made  the  basis 
of  our  governmental  system,  which  we  deem  essential  to  the  rule 
of  law  and  the  maintenance  of  individual  freedom,  and  of  which 
they  have,  unfortunately,  been  denied  the  experience  possessed  by 
us;  that  there  are  also  certain  practical  rules  of  government  which 
we  have  found  to  be  essential  to  the  preservation  of  these  great 
principles  of  liberty  and  law;  and  that  these  principles  and  these 
rules  of  government  must  be  established  and  maintained  in  their 
islands  for  the  sake  of  their  liberty  and  happiness,  however  much 
they  may  conflict  with  the  customs  or  laws  or  procedure  with  which 
they  are  familiar.  It  is  evident  that  the  most  enlightened  thought 
of  the  Philippine  Islands  fully  appreciates  the  importance  of  these 
principles  and  rules,  and  they  will  inevitably  within  a  short  time 
command  universal  assent.  Upon  every  division  and  branch  of 
the  government  of  the  Philippines,  therefore,  must  be  imposed  these 
inviolable  rules: 

That  no  person  shall  be  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law;  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation;  that  in  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial, 
to  be  informed  of  the  nature  and  cause  of  the  accusation,  to  be 
confronted  with  the  witnesses  against  him,  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance 


APPENDIX 


407 


of  counsel  for  his  defense;  that  excessive  bail  shall  not  be  required, 
nor  excessive  fines  imposed,  nor  cruel  and  unusual  punishment 
inflicted;  that  no  person  shall  be  put  twice  in  jeopardy  for  the  same 
offense,  or  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself;  that  the  right  to  be  secure  against  unreasonable  searches 
and  seizures  shall  not  be  violated;  that  neither  slavery  nor  in- 
voluntary servitude  shall  exist  except  as  a  punishment  for  crime; 
that  no  bill  of  attainder,  or  ex  post  facto  law  shall  be  passed;  that  no 
law  shall  be  passed  abridging  the  freedom  of  speech  or  of  the  press, 
or  of  the  rights  of  the  people  to  peaceably  assemble  and  petition  the 
Government  for  a  redress  of  grievances;  that  no  law  shall  be  made 
respecting  an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof,  and  that  the  free  exercise  and  enjoyment  of  religious 
profession  and  worship  without  discrimination  or  preference  shall 
forever  be  allowed. 

It  will  be  the  duty  of  the  commission  to  make  a  thorough  in- 
vestigation into  the  titles  to  the  large  tracts  of  land  held  or  claimed 
by  individuals  or  by  religious  orders;  into  the  justice  of  the  claims 
and  complaints  made  against  such  landholders  by  the  people  of 
the  islands,  or  any  part  of  the  people,  and  to  seek  by  wise  and  peace- 
able measures  a  just  settlement  of  the  controversies  and  redress 
of  the  wrongs  which  have  caused  strife  and  bloodshed  in  the  past. 
In  the  performance  of  this  duty  the  commission  is  enjoined  to  see 
that  no  injustice  is  done;  to  have  regard  for  substantial  right  and 
equity;  disregarding  technicalities  so  far  as  substantial  right  permits, 
and  to  observe  the  following  rules:  That  the  provision  of  the  Treaty 
of  Paris,  pledging  the  United  States  to  the  protection  of  all  rights  of 
property  in  the  islands,  and  as  well  the  principle  of  our  own  Govern- 
ment, which  prohibits  the  taking  of  private  property  without  due 
process  of  law,  shall  not  be  violated;  that  the  welfare  of  the  people  of 
the  islands,  which  should  be  a  paramount  consideration,  shall  be 
attained  consistently  with  this  rule  of  property  right;  that  if  it 
becomes  necessary  for  the  public  interest  of  the  people  of  the  islands 
to  dispose  of  claims  to  property  which  the  commission  finds  to  be 
not  lawfully  acquired  and  held,  disposition  shall  be  made  thereof 
by  due  legal  procedure,  in  which  there  shall  be  full  opportunity  for 
fair  and  impartial  hearing  and  judgment;  that  if  the  same  public 
interests  require  the  extinguishment  of  property  rights  lawfully 
acquired  and  held,  due  compensation  shall  be  made  out  of  the  public 
treasury  therefor;  that  no  form  of  religion  and  no  minister  of  religion 
shall  be  forced  upon  any  community  or  upon  any  citizen  of  the 
islands;  that  upon  the  other  hand  no  minister  of  religion  shall  be 


Land  titles 
of  religious 
orders  to  be 
Investigated 
and  wrongs 
redressed. 


Rights  of 
property  to 
be  main- 
tained. 


408 


APPENDIX 


Separation 
of  state  and 
church. 

Free  pri- 
mary edu- 
cation. 


English 
language 
to  be 
taught. 

Taxation. 


Tribal 

holdings 

permitted. 


interfered  with  or  molested  in  following  his  calling,  and  that  the 
separation  between  state  and  church  shaU  be  real,  entire,  and 
absolute. 

It  will  be  the  duty  of  the  commission  to  promote  and  extend,  and, 
as  they  find  occasion,  to  improve,  the  system  of  education  already 
inaugurated  by  the  military  authorities.  In  doing  this  they  should 
regard  as  of  first  importance  the  extension  of  a  system  of  primary 
education  which  shall  be  free  to  all,  and  which  shall  tend  to  fit  the 
people  for  the  duties  of  citizenship  and  for  the  ordinarj--  avocations 
of  a  civihzed  community.  This  instruction  should  be  given,  in  the 
first  instance,  in  every  part  of  the  islands  in  the  language  of  the  peo- 
ple. In  view  of  the  great  number  of  languages  spoken  by  the  dif- 
ferent tribes,  it  is  especially  important  to  the  prosperity  of  the 
islands  that  a  common  medium  of  communication  may  be  estab- 
lished, and  it  is  obviously  desirable  that  this  medium  should  be  the 
English  language.  Especial  attention  should  be  at  once  given  to 
affording  full  opportunity  to  all  the  people  of  the  islands  to  acquire 
the  use  of  the  English  language. 

It  may  be  weU  that  the  main  changes  which  should  be  made  in  the 
system  of  taxation  and  in  the  body  of  the  laws  under  which  the 
people  are'governed,  except  such  changes  as  have  already  been  made 
by  the  military  government,  should  be  relegated  to  the  civil  govern- 
ment which  is  to  be  established  under  the  auspices  of  the  com- 
mission. It  will,  however,  be  the  duty  of  the  commission  to  inquire 
diligently  as  to  whether  there  are  any  further  changes  which  ought 
not  to  be  delayed ;  and  if  so,  they  are  authorized  to  make  such  changes, 
subject  to  your  approval.  In  doing  so  they  are  to  bear  in  mind 
that  taxes  which  tend  to  penalize  or  repress  industry  and  enterprise 
are  to  be  avoided;  that  provisions  for  taxation  should  be  simple, 
so  that  they  may  be  understood  by  the  people;  that  they  should 
affect  the  fewest  practicable  subjects  of  taxation  which  wiU  serve 
for  the  general  distribution  of  the  burden. 

The  main  body  of  the  laws  which  regulate  the  rights  and  obliga- 
tions of  the  people  should  be  maintained  with  as  little  interference 
as  possible.  Changes  made  should  be  mainly  in  procedure,  and  in 
the  criminal  laws  to  secure  speedy  and  impartial  trials,  and  at  the 
same  time  effective  administration  and  respect  for  individual  rights. 

In  dealing  with  the  uncivilized  tribes  of  the  islands  the  commission 
should  adopt  the  same  course  followed  by  Congress  in  permitting 
the  tribes  of  our  North  American  Indians  to  maintain  their  tribal 
organization  and  government,  and  under  which  many  of  those  tribes 
are  now  living  in  peace  and  contentment,  surrounded  by  a  civiliza- 


APPENDIX 


409 


tion  to  which  they  are  unable  or  unwilling  to  conform.  Such  tribal 
governments  should,  however,  be  subjected  to  wise  and  firm  regula- 
tion; and,  without  luidue  or  petty  interference,  constant  and  active 
effort  should  be  exercised  to  prevent  barbarous  practices  and  intro- 
duce civilized  customs. 

Upon  all  officers  and  employees  of  the  United  States,  both  civil 
and  military,  should  be  impressed  a  sense  of  the  duty  to  observe 
not  merely  the  material  but  the  personal  and  social  rights  of  the 
people  of  the  islands,  and  to  treat  them  with  the  same  courtesy  and 
respect  for  their  personal  dignity  which  the  people  of  the  United 
States  are  accustomed  to  require  from  each  other. 

The  articles  of  capitulation  of  the  city  of  Manila  on  the  13th  of 
August,  1898,  concluded  with  these  words: 

"This  city,  its  inhabitants,  its  churches  and  religious  worship, 
its  educational  establishments,  and  its  private  property  of  all  descrip- 
tions are  placed  under  the  special  safeguard  of  the  faith  and  honor 
of  the  American  army." 

I  believe  that  this  pledge  has  been  faithfully  kept.  As  high  and 
sacred  an  obligation  rests  upon  the  Government  of  the  United  States 
to  give  protection  for  property  and  life,  civil  and  religious  freedom, 
and  wise,  firm,  and  unselfish  guidance  in  the  paths  of  peace  and  pros- 
perity to  all  the  people  of  the  Philippine  Islands.  I  charge  this  com- 
mission to  labor  for  the  full  performance  of  this  obligation,  which 
concerns  the  honor  and  conscience  of  their  country,  in  the  firm  hope 
that  through  their  labors  all  the  inhabitants  of  the  Philippine  Islands 
may  come  to  look  back  with  gratitude  to  the  day  when  God  gave 
victory  to  American  arms  at  Manila  and  set  their  land  under  the 
sovereignty  and  the  protection  of  the  people  of  the  United  States. 

William  McKinley. 


Respect  for 
personal 
and  social 
rights  of 
the  people. 


AN  ACT  TEMPORARILY  TO  PROVIDE  FOR  THE  AD- 
MINISTRATION OF  THE  AFFAIRS  OF  CIVIL  GOV- 
ERNMENT IN  THE  PHILIPPINE  ISLANDS, 
AND  FOR  OTHER  PURPOSES. 


Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Acts  of  the 

United  States  of  America  in  Congress  assembled,  That  the  action  of  !*'■<''*'''«'"/ 

the  President  of  the  United  States  in  creating  the  Philippine  Com-  and  throueh 

mission  and  authorizing  said   commission   to  exercise  the  powers  <hecomniis- 

of  government  to  the  extent  and  in  the  manner  and  form  and  subject  iarmed. 
27 


410 


APPENDIX 


Governor, 
vice-gov- 
ernor, and 
commis- 
sioners to 
be  appoint- 
ed by  tlie 
President. 

Tariff  of 
duties. 


President 
to  main- 
tain sover- 
eignty and 
authority  of 
the  United 
States. 


to  the  regulation  and  control  set  forth  in  the  instructions  of  the 
President  to  the  Philippine  Commission,  dated  April  7,  1900,  and 
in  creating  the  offices  of  civil  governor  and  vice-governor  of  the 
Philippine  Islands,  and  authorizing  said  civil  governor  and  vice- 
governor  to  exercise  the  powers  of  government  to  the  extent  and 
in  the  manner  and  form  set  forth  in  the  Executive  order  dated  June 
21,  1901,  and  in  establishing  four  executive  departments  of  govern- 
ment in  said  islands  as  set  forth  in  the  act  of  the  Philippine  Com- 
mission, entitled  "An  act  providing  an  organization  for  the  Depart- 
ments of  the  Interior,  of  Commerce  and  Police,  of  Finance  and 
Justice,  and  of  Public  Instruction,"  enacted  September  6,  1901,  is 
hereby  approved,  ratified,  and  confirmed,  and  until  otherwise  pro- 
vided by  law  the  said  islands  shall  continue  to  be  governed  as 
thereby  and  herein  provided,  and  all  laws  passed  hereafter  by  the 
Philippine  Commission  shall  have  an  enacting  clause  as  follows: 
"By  authority  of  the  United  States,  be  it  enacted  by  the  Philippine 
Commission."  The  provisions  of  section  eighteen  hundred  and 
ninety-one  of  the  Revised  Statutes  of  1878  shall  not  apply  to  the 
Philippine  Islands. 

Future  appointments  of  civil  governor,  vice-governor,  mem- 
bers of  said  commission,  and  heads  of  executive  departments  shall 
be  made  by  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate. 

Sec.  2. — That  the  action  of  the  President  of  the  United  States 
heretofore  taken  by  virtue  of  the  authority  vested  in  him  as  com- 
mander in  chief  of  the  army  and  navy,  as  set  forth  in  his  order 
of  July  12,  1898,  whereby  a  tariff  of  duties  and  taxes  as  set  forth  by 
said  order  was  to  be  levied  and  collected  at  aU  ports  and  places  in 
the  Philippine  Islands  upon  passing  into  the  occupation  and  pos- 
session of  the  forces  of  the  United  States,  together  with  the  sub- 
sequent amendments  of  said  order,  are  hereby  approved,  ratified, 
and  confirmed,  and  the  actions  of  the  authorities  of  the  government 
of  the  Philippine  Islands,  taken  in  accordance  with  the  provisions  of 
said  order  and  subsequent  amendments,  are  hereby  approved: 
■provided,  that  nothing  contained  in  this  section  shall  be  held  to 
amend  or  repeal  an  act  entitled  "An  act  temporarily  to  provide 
revenue  for  the  Philippine  Islands,  and  for  other  purposes,"  approved 
March  8,  1902. 

Sec.  3. — That  the  President  of  the  United  States,  during  such 
time  as  and  whenever  the  sovereignty  and  authority  of  the  United 
States  encounter  armed  resistance  in  the  Philippine  Islands,  vmtil 
otherwise   provided   by  Congress,  shall   continue   to   regulate  and 


APPENDIX  411 

control  commercial  intercourse  with  and  within  said  islands  by- 
such  general  rules  and  regulations  as  he,  in  his  discretion,  may 
deem  most  conducive  to  the  public  interests  and  the  general  welfare. 

Sec.  4. — That  all  inhabitants  of  the  Philippine  Islands  continuing 
to  reside  therein,  who  were  Spanish  subjects  on  the  11th  day  of  April, 
1899,  and  then  resided  in  said  islands,  and  their  children  born  sub- 
sequent thereto,  shall  be  deemed  and  held  to  be  citizens  of  the  Philip-    Citizens 
pine  Islands  and  as  such  entitled  to  the  protection  of  the  United    ot  the 
States,  except  such  as  shall  have  elected  to  preserv^e  their  allegiance    J'^ihppine 
to  the  Crown  of  Spain  in  accordance  with  the  provisions  of  the 
treaty  of  peace  between  the  United  States  and  Spain  signed  at  Paris, 
December  10, 1898. 

Sec.  5. — That  no  law  shall  be  enacted  in  said  islands  which  shall  Bill  of 
deprive  any  person  of  life,  liberty,  or  property  without  due  process  rights. 
of  law,  or  deny  to  any  person  therein  the  equal  protection  of  the  laws. 

That  in  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  be  heard  by  himself  and  counsel,  to  demand  the  nature  and 
cause  of  the  accusation  against  him,  to  have  a  speedy  and  public 
trial,  to  meet  the  witnesses  face  to  face,  and  to  have  compulsory 
process  to  compel  the  attendance  of  witnesses  in  his  behalf. 

That  no  person  shall  be  held  to  answer  for  a  criminal  offense 
without  due  process  of  law;  and  no  person  for  the  same  offense 
shall  be  twice  put  in  jeopardy  of  punishment,  nor  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself. 

That  all  persons  shall  before  conviction  be  bailable  by  sufficient 
sureties,  except  for  capital  offenses. 

That  no  law  impairing  the  obligation  of  contracts  shall  be  enacted. 

That  no  person  shall  be  imprisoned  for  debt. 

That  the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when,  in  cases  of  rebellion,  insurrection,  or  invasion 
the  public  safety  may  require  it,  in  either  of  which  events  the  same 
may  be  suspended  by  the  President,  or  by  the  governor,  with  the 
approval  of  the  Philippine  Commission,  wherever  during  such  period 
the  necessity  for  such  suspension  shall  exist. 

That  no  ex  post  facto  law  or  bill  of  attainder  shall  be  enacted. 

That  no  law  granting  a  title  of  nobility  shall  be  enacted,  and  no 
person  holding  any  office  of  profit  or  tnist  in  said  islands,  shall, 
without  the  consent  of  the  Congress  of  the  United  States,  accept 
any  present,  emolument,  office,  or  title  of  any  kind  whatever  from 
any  king,  queen,  prince,  or  foreign  state. 

That  excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishment  inflicted. 


412  APPENDIX 

That  the  right  to  be  secure  against  unreasonable  searches  and 
seizures  shall  not  be  violated. 

That  neither  slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  in  said  islands. 

That  no  law  shall  be  passed  abridging  the  freedom  of  speech  or 
of  the  press,  or  the  right  of  the  people  peaceably  to  assemble  and 
petition  the  government  for  redress  of  grievances. 

That  no  law  shall  be  made  respecting  an  establishment  of  religion 
or  prohibiting  the  free  exercise  thereof,  and  that  the  free  exercise 
and  enjoyment  of  religious  profession  and  worship,  without  dis- 
crimination or  preference,  shall  forever  be  allowed. 

That  no  money  shall  be  paid  out  of  the  treasury  except  in  pur- 
suance of  an  appropriation  by  law. 

That  the  rule  of  taxation  in  said  islands  shall  be  uniform. 

That  no  private  or  local  bill  which  may  be  enacted  into  law  shall 
embrace  more  than  one  subject,  and  that  subject  shall  be  expressed 
in  the  title  of  the  bill. 

That  no  warrant  shall  issue  but  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched  and  the  person  or  things  to  be  seized. 

That  all  money  collected  on  any  tax  levied  or  assessed  for  a  spe- 
cial purpose  shall  be  treated  as  a  special  fund  in  the  treasury  and 
paid  out  for  such  purpose  only. 

Sec.  6. — ^That  whenever  the  existing  insurrection  in  the  Philip- 
pine Islands  shall  have  ceased  and  a  condition  of  general  and  complete 
peace  shall  have  been  established  therein,  and  the  fact  shall  be  cer- 
tified to  the  President  by  the  Philippine  Commission,  the  President, 
upon  being  satisfied  thereof,  shall  order  a  census  of  the  Philippine 
Islands  to  be  taken  by  said  Philippine  Commission.  .  .  . 
Philippine  Sec.  7. — That  two  years  after  the  completion  and  publication  of 

Assembly.  ^^g  census,  in  case  such  condition  of  general  and  complete  peace 
with  recognition  of  the  authority  of  the  United  States  shall  have 
continued  in  the  territory  of  said  islands  not  inhabited  by  Moros 
or  other  non-Christian  tribes,  and  such  facts  shall  have  been  certi- 
fied to  the  President  by  the  Philippine  Commission,  the  President, 
upon  being  satisfied  thereof,  shall  direct  said  commission  to  call, 
and  the  commission  shall  call,  a  general  election  for  the  choice  of 
delegates  to  a  popular  assembly  of  the  people  of  said  territory  in 
the  Philippine  Islands,  which  shall  be  known  as  the  Philippine 
Assembly.  After  said  assembly  shall  have  convened  and  organized, 
all  the  legislative  power  heretofore  conferred  on  the  Philippine 


APPENDIX  413 

Commission  m  all  that  part  of  said  islands  not  inhabited  by  Moros 
or  other  non-Christian  tribes  shall  be  vested  in  a  legislature  con- 
sisting of  two  houses — the  Philippine  Commission  and  the  Philippine 
Assembly.  Said  assembly  shall  consist  of  not  less  than  fifty  nor 
more  than  one  hundred  members  to  be  apportioned  by  said  com- 
mission among  the  provinces  as  nearly  as  practicable  according  to 
population:  provided,  that  no  province  shall  have  less  than  one 
member:  and  provided  further,  that  provinces  entitled  by  popula- 
tion to  more  than  one  member  may  be  divided  into  such  convenient 
districts  as  the  said  commission  may  deem  best. — Approved,  Jidy 
1,  1902. 


INDEX 


Absolutism,  2. 

Academy  at  Amiapolis,  133;  at 
West  Point,  133. 

Adams,  John,  150. 

Addresses  to  King,  26. 

Admission  of  a  State,  262;  of 
Texas,  265. 

Agriculture,  Department  of,  188. 

Alaska,  purchase  of,  164. 

Albany,  14;  Congress  of,  23. 

Alien  and  Sedition  Law,  140;  pro- 
tests against,    141. 

Ambassadors,  174. 

Amendment  of  bills,  96. 

Annapolis  meeting,  50. 

Annexation  treaties,  163. 

Appeal  from  Philippine  to  United 
States  Supreme  Court,  275. 

Appendix:  Ordinance  of  1787; 
Articles  of  Confederation;  Con- 
stitution of  United  States;  Presi- 
dent's instructions  to  Philip- 
pine Commission;  Act  providing 
Philippine  Government,  371- 
413. 

Appointments,  167;  of  inferior 
officers,  168;  attitude  of  Senate 
to  presidential,  168. 

Appropriations  for  treaties,  159. 

Aristocracy,  13. 

Arizona,  261. 


Army,  of  United  Colonies,  28;  or- 
ganization of,  131;  officers  of, 
132;  size  of,  132;  training  for, 
133;  temporary  increases  in, 
183;  later  organization  of,  183. 

Arrests,  242. 

Articles  of  Confederation,  28,  377. 

Assemble,  right  to,  230. 

Assemblies  and  governors,  5. 

Assembly,  Philippine,  275. 

Assistants,  Court  of,  17,  18. 

Association  of  United  Colonies,  26. 

Attainder,  bill  of,  143,  220. 

Attendance  in  Congress,  80. 

Attorney-General,  186. 

Baltimore,  Lord,  20. 

Bancroft,  on  Declaration  of  In- 
dependence, 35. 

Bankrupt.  122. 

Bankruptcy,  121. 

Belknap  impeached,  213. 

Bequests,  349. 

Bicameral  system,  58. 

Bill,  passage  of,  92;  different  kinds 
of,  93;  final  act  on,  96;  origin  of, 
97;  revenue,  97;  of  rights,  107, 
216,  217,  219,  221-224. 

Birth  of  a  nation,  35. 

Births,  registration  of,  324. 

Blount  impeached,  210. 
415 


416 


INDEX 


Bonds,  use  of,  113. 

Borrowing  money,  112,  113. 

Brooklyn,  14. 

Burgesses,  12. 

Burr,  150;  conspiracy,  226. 

Cabinet,  8.5;  defects  and  advan- 
tages of  American,  95;  in  presi- 
dential succession,  155;  appoint- 
ment of,  169,  178,  190;.  con- 
trasted with  English,  190;  duties 
of,  190;  English,  190. 

California,  never  a  Territory,  262; 
admitted,  264. 

Campaign,  342;  expenses,  343. 

Carolinas,  government  in,  20. 

Castle,  man's  house  is  his,  241. 

Catholics  not  voters,  16. 

Caucus,  congressional,  340. 

Caveat  emptor,  349. 

Charity,  public,  354. 

Charter,  colonial,  286. 

Chase  impeached,  211. 

Church  and  state,  19. 

Church  of  England,  17. 

Cities,  government  of,  317-321. 

Citizen  and  party,  333;  in  relation 
to  government,  324-355. 

Citizenship,  117;  special  cases  of, 
120;  State,  120. 

Civil  case,  351. 

Civil  Service  Act,  173. 

Civil  War,  113. 

Civil  War  debts.  111. 

Claims,  Court  of,  198,  202. 

Cleveland,  his  majority  in  New 
York,  150;  withdraws  treaty, 
268. 

Coahuila  and  Texas,  262. 

Coin,  token,  123. 

Coining  money,  122;  power  of 
government  in,  123. 


Colonial  governments,  4;  similarity 
of,  5. 

Colonies,  1;  classes  of,  4;  under 
England,  2. 

Colonists,  French,  3;  English,  4. 

Columbia,  District  of,  136,  199, 
200. 

Commerce,  definition  of,  114;  pro- 
hibition of,  115;  regulation  of, 
113,143. 

Commerce  and  Labor,  Department 
of,  189. 

Commercial  intercourse,  360. 

Commission,  Civil  Service,   173. 

Commission,   Electoral,    151. 

Commission,  Interstate  Com- 
merce, 114. 

Commission,  United  States  Philip- 
pine, 273-375;  President's  in- 
structions to, 402-408. 

Committee  of  the  whole,  91;  of 
States,  41. 

Committees  and  legislation,  88;  in 
the  House,  88;  in  the  Senate,  88. 

Committees  of  Congress,  89,  90; 
their  treatment  of  bills,  93; 
national,  341. 

Common  law,  16. 

Commons,  resolutions  in,  23. 

Communication  between  States, 
367. 

Community,  rights  of,  226. 

Compensation  of  congressmen,  82. 

Concord,  27. 

Concurrent   resolutions,   98. 

Condemnation  of  land,  228. 

Confederation,  1643,  population 
of,  21;  aim  of,  21. 

Confederation,  Articles  of,  28,  39; 
text  of,  377-385. 

Conflict  of  authorities  on  naturali- 
zation, 118. 


INDEX 


417 


Congregational  Church,  13,  16. 

Congress,  58;  steps  toward  general, 
22;  first  call  for,  22;  in  New 
York,  24;  meetings  of,*76,  77; 
separate  meetings  of  houses  of, 
77;  adjournment  of,  77;  "execu- 
tive session,"  78;  attendance  of, 
80;  members  of,  80;  freedom  of 
members  of,  80;  members'  com- 
pensation, 82;  members  and 
offices  of,  84;  minor  officers  of, 
87;  powers  of,  103;  limitation  on 
taxing-power  of,  106;  may  nat- 
uralize aliens,  118;  restriction 
on  powers  of,  142,  143;  and  the 
Territories,  259,  260. 

Congress  at  Albany,  23. 

Congress,   Continental,   28,   47. 

Congress  of  1774,  26. 

Congress  of  1775,  27. 

Congress  under  Articles  of  Con- 
federation, 41,  42. 

Congressional  caucus,  340. 

Congressional  district,  68. 

Connecticut,  popular  government 
in,  19. 

Consent,  age  of,  328. 

Constable,  7. 

Constitution,  recommended  to 
States,  52;  adopted,  53;  on 
militia,  135;  and  treaties,  160, 
369;  textof,  3S5-401. 

Constitution,  English,  205. 

Constitutional  Convention,  50,  51, 
147. 

Constitutionality  of  laws,  205; 
English  position  as  to,  205. 

Constitutions,  State,  44. 

Consuls,  174-177. 

Contested  elections,  78,  79,  342. 

Contract  of  sale,  348;  to  serve, 
331. 


Contracts  by  minors,  325. 

Convention,  Constitutional,  50. 

Convention,  county,  335;  order  of 
business,  336;  national,  339; 
State,  339;  procedure  of,  341. 

Cooley,  on  restrictions  imposed  by 
the  Constitution,  219. 

Copyrights  and  patents,  126. 

Coroner,  8. 

Counterfeiting,  125. 

County,  7,  8,  13;  in  southern  col- 
onies, 10;  in  Virginia,  10;  in 
Maryland,  12;  in  New  York,  15; 
in  Pennsylvania,  15;  govern- 
ment, 313-315;  convention,  335. 

Court  martial,  213. 

Court  of  Assistants,  17,  IS. 

Courtesy,  senatorial,   169. 

Courts,  general,  11;  quarterly,  11; 
county,  11,  12;  inferior,  127; 
Federal,  195;  circuit,  200;  cir- 
cuit, of  appeals,  201. 

Crimes,  classes  of,  353. 

Criminal  case,  353,  354. 

Criticism,  233. 

Deaf,  dumb,  and  blind,  355. 

Debts  and  their  pa>nnent,  111. 

Declaration  of  Independence,  29, 
31,  33.  34. 

Declaration  of  Paris,  131,  370. 

Declaration  of  rights  and  griev- 
ances, 24,  26,  218. 

Defectives,  3.55. 

Delegates,  41;  from  Territories, 
80. 

Democracy,  growth  of,  301. 

Departments,  executive,  177. 

Diplomatic  agents   174. 

Direct  legislation  through  State 
Constitutions,  291. 

Direct  taxes,  63. 


418 


INDEX 


Disputes,  internal,  369. 
District  Courts,  199. 
District  of  Columbia,  136. 
District-Attorney,  United  States, 

196. 
Due  process  of  law,  240. 
Dutch,  vessels,  24;  in  New  York, 

311. 
Duties  between  nations,  359. 

Economic  freedom,  24. 

Education,  325-327;  compulsory, 
326. 

Election,  of  Representatives,  65; 
of  Senators,  73,  75;  judge  of,  78; 
of  President,  147   148. 

Elections,  contested,  78. 

Electors,  presidential,   147-150. 

Embargo  of  1807,  115;  attitude  of 
New  England  toward,  116;  pur- 
pose of,  116;  effect  of,  116. 

Eminent  domain,  227;  in  Terri- 
tories, 228,  229. 

Enabling  Act,  261. 

Enacting  a  law,  96. 

English  Cabinet,  85. 

English  Parliament,  60. 

Equality,  236;  of  taxation,  106. 

Equalization,  298. 

Equity,  204;  Grotius's  definition 
of,  204. 

Excise,  111. 

Executive,  collegiate,  146;  in- 
fluence of  Washington  in  fixing 
form  of,  146;  Hamilton's  pro- 
posal, 156;  executive  depart- 
ments, 177;  independence  of, 
190. 

Exequator,  176. 

Expatriation,  119. 

Ex  post  facto  laws,  221. 

Extra  sessions,  67. 


Family,  nature  of,  329. 

Federal  and  State  goverrmients, 
281. 

Federal  courts,  127;  need  of,  195; 
relation  to  State  courts,  195; 
origin  of,  196;  scope  of,  196;  law 
applied  by,  207. 

Felony,  353. 

Feudalism,  14;  in  New  York,  312. 

Filibustering,  99. 

Florida,  163. 

Foreign  affairs,  179. 

Form  of  English  government  re- 
produced, 5. 

Franklin,  27;  his  Articles  of  Con- 
federation, 40. 

Freedom,  religious,  19;  economic, 
24. 

Freemen,  assembly  of,  6;  quali- 
fications, of,  15,  17. 

French  and  Indians,  22. 

French  Revolution,  221. 

Gadsden  Treaty,   164. 

Game,  344. 

General  Sessions,  Court  of,  8. 

Gerrymander,  68. 

Gifts  and  bequests,  349. 

Government,  under  Articles  of 
Confederation,  41;  taxation  of 
means  of,  107;  of  a  Territory, 
251;  local,  in  New  England,  308; 
and  party,  337 ;  land,  343. 

Governments  of  Colonies,  5. 

Governor,  and  assembly,  5;  of 
States,  46;  duties  of,  299,  300. 

Grand  Jury,  303. 

Guadalupe-Hidalgo,Treatyof,  164. 

Guilds,  286. 

Habeas  Corpus  Act,  16,  143,  216, 
218;    suspension   of,    224,   225; 


INDEX 


419 


Bates  on  suspension  of,  225;  sus- 
pended by  Lincoln,  225;  pre- 
sumed in  America,  225. 

Hamilton  on  Executive  power,  156. 

Harrison  submits  Hawaiian  treaty, 
268. 

Hawaii,  98;  annexed,  164,  268; 
government  of,  269;  made  a 
Territory,  269,  270;  judiciary  in, 
270;  district  court  in,  272. 

Hayes  elected,  152. 

House,  60;  committees,  90;  com- 
mittee on  rules,  92;  and  treaties, 
159;  on  Jay's  treaty,  162;  in  im- 
peachment, 208. 

Humphreys  impeached,  212. 

Hundred,  10;  in  Maryland,  11,  12. 

Hungary,  independence  of,  367. 

Impeachment,  72;  cases  of,  208, 

210-213. 
Implied  powers,  138;  attitude  of 

parties  toward,  139. 
Independence,  29;  project  of,  30; 

Declaration  of,  33;  of  Executive, 

191;   of  judges,   206;   national, 

360. 
Indians,  2,  115. 

Individual  control  of  property,  33 1 . 
Insane, the,  355. 
Interior,  Department  of,  187. 
Interstate  Commerce  Commission, 

114. 

Jay's  treaty,  161;  terms  of,  162; 

Washington's  view  of,  162. 
Jefferson,  150;  on  townships,  9. 
Jews  not  voters,  16. 
Johnson,    President,    impeached, 

212. 
Joint  resolution  admitting  Texas, 

263. 


Journal,  93. 

Judges,  independent,  206;  tenure 

of,  301. 
Judges   of   Supreme   Court,    127; 

number  of,  may  be  increased, 

127. 
Judgment,  352. 
Judiciary  of  county,  11;  of  State, 

300. 
Jury,  trial  by,  16,  18,  304;  Grand, 

303;  of  one's  peers,  306. 
Justice,  Department  of,  185. 
Justice  of  the  peace,  8. 
Justices    of   the   Supreme   Court, 

appointment  of,  198. 

Kentucky  Resolutions,  141. 
King,  supremacy  of,  3;  Spanish,  3; 
and  land,  218. 

Land,  acquiring  government,  343. 

Lands,  northwestern,  39. 

Law,  parliamentary,  100;  com- 
mon, 216;  of  the  land,  240; 
definition  of,  358;  international, 
358. 

Law-making,  by  States,  295. 

Laws,  all  repealable,  143;  ex  post 
facto,  221. 

Lease,  347. 

Legal  tender,  124. 

Legal  Tender  Act,  206. 

Legislative  power,  58;  not  dele- 
gated, 142. 

Legislatures,  in  colonies,  5,  45, 
46;  bicameral,  58;  of  States, 
294. 

Letters  of  marque,  130. 

Lexington  and  Concord,  27. 

Liberty,  civil,  16,  238;  nature 
of,  237;  political,  238;  religious, 
239. 


420 


INDEX 


Local  government  in  southern 
colonies,  10;  in  middle  colonies, 
11,  13;  in  the  West,  315. 

Louisiana,  10,  163,  258. 

McKinley  and  Hawaii,  268. 

Magna  Charta,  216. 

Majority,  popular,  151. 

Tvlanila,  government  of,  297. 

Manufactures,  13;  restrictions  on, 
25. 

Marque,  letters  of,  130. 

Marriage,  328. 

Marshal,  United  States,  196, 
219. 

Massachusetts  as  a  royal  province, 
19. 

Massachusetts  Bay  Company,  18. 

Master  and  servant,  330. 

Members  of  Congress,  80;  of  Con- 
tinental Congress,  29. 

Merit  system,  171. 

Messages  of  President,  165;  general 
and  special,  166;  special,  167. 

Mexico,  2. 

Middle  colonies,  13. 

Mileage,  83;  corruption  in,  84. 

Military  Academy,  133. 

Military  organization  of  county,  9. 

Militia,  relation  to  Federal  Gov- 
ernment, 134;  relation  to  State, 
135;  in  Federal  service,  136;  in 
New  England,  311. 

Ministers,  English,  94,  174. 

Minor,  the,  324. 

Mississippi,  question  of,  363. 

Missouri  Territory,  258. 

Monarchy  vs.  republicanism,  .361. 

Money,  borrowing,  112;  coining, 
122. 

Monroe  Doctrine,  361. 

Mortgage  and  foreclosure,  345. 


Municipal  government,  in  Philip- 
pine Islands,  276. 

Nation,  defined,  1;  birth  of,  35; 
new,  36;  name  of,  40. 

National,  convention,  339,  341; 
territory,  362. 

Naturalization,  118;  conditions  of, 
119. 

Nature  and  liberty,  237. 

Naval  Academy,  133. 

Navigation,  114;  laws,  24. 

Navy,  Department  of,  184. 

Neutrals,  in  war  time,  369;  moral 
force  of,  370. 

New  Amsterdam,  14. 

New  England,  local  government 
in,  6;  Confederacy  of  1643,  21; 
towns,  308;  influence  of  in  the 
West,  315. 

New  Englanders,  312. 

New  Mexico,  261. 

New  Netherland  Company,  14. 

New  Netherlands,  government  of, 
19. 

New  York,  beginnings  of,  14;  Con- 
gress in,  24. 

Nobihty,  title  of,  144. 

Non-intercourse,  26. 

Non-interference,  360. 

Northwest,  Ordinance  for  the 
Government  of  the,  371-377. 

Northwestern  Territory,  249-254. 

Notes,  treasury,  123;  as  legal  ten- 
der, 124. 

Nullification,  142 

Obligations,  moral  and  legal,  351. 
Office,  removals  from,  170. 
Offices,  and  members  of  Congress, 

84;  and  appointment,  167. 
Oglethorpe's  rule.  20. 


I 


( 


INDEX 


421 


Opposition  to  independence,  30, 

31. 
Ordinance  of  1787,  251,  257;  text 

of,  371. 
Overseers  of  poor,  7. 

Panama  Canal,  113. 

Paper  money  in  Civil  War,  206. 

Parental  duty  and  authority,  330. 

Paris,  Declaration  of,  370. 

Parish,  10;  in  Maryland,  12;  in 
Virginia,  312. 

Parliament,  American  colonists' 
view  of,  4;  prestige  of,  4. 

Parliamentary  law,  100. 

Parliamentary  responsibility,  85. 

Party,  31;  government,  192;  citizen 
and,  333;  choice  of,  334;  com- 
mittees of,  335;  and  the  govern- 
ment, 337;  organization  in  State, 
338. 

Patents  and  copyrights,  126. 

Patroons,  14,  312. 

Payments,  111. 

Peck  impeached,  212. 

Peers,  judgment  of  one's,  305. 

Penn,  William,  15. 

Pennsylvania,  government  in,  19. 

Pensions  and  bounties,  1 12. 

People,  rights  of,  16;  and  govern- 
ment, 282. 

Period  of  Representatives,  66. 

Petition,  of  Right,  216,  217,  230. 

Philadelphia  meeting,  50. 

Philippine  Assembly,  275. 

Philippine  Commission,  instruc- 
tions to,  402-408. 

Philippines,  annexed,  165;  govern- 
ment of,  272;  act  to  provide 
government  for,  409. 

Pickering  impeached,  211. 

Piracy,  127. 


Pirates,  trial  of,  128. 

Plantations,  13. 

Popular  government,  in  Connecti- 
cut, 19. 

Population  on  Atlantic  coast,  2. 

Porto  Rico,  annexed,  165;  govern- 
ment of,  271;  Organic  Act,  271, 
272;  executive  council  of,  272. 

Ports  of  neutrals,  370. 

Postmasters,  classes  of,  187. 

Post-office  Department,  186. 

Post-offices  and  post  roads,  125. 

Powers,  delegated,  40;  reserved, 
40,  103;  implied,  104;  to  tax, 
105;  of  Congress,  138,  142;  of 
President,  156-1.58;  separation 
of,  178;  of  United  States  Philip- 
pine Commission,  274. 

Preemption  laws,  343. 

President,  in  legislation,  58;  elec- 
tion of,  147;  elected  by  House, 
150;  his  compensation,  153;  in 
treaty-making,  158;  his  mes- 
sages to  Congress,  165;  and 
Supreme  Court,  207. 

Presidential,  candidates,  151 ;  term, 
154 ;  succession,  155 ;  office, 
model  for,  156. 

Press,  freedom  of,  231. 

Previous  question,  99. 

Privateering,  130. 

Property,  quahfication,  16,  46; 
of  minor,  324;  distribution  of, 
330;  control  of,  331;  private,  de- 
stroyed for  public  good,  332; 
forms  of  title  to,  344;  real,  344; 
separate  and  community,  344; 
methods  of  transferring,  347. 

Protection,  governmental,  350. 

Provincial  Government  Act,  278. 

Provincial  government  in  Philip- 
pine Islands,  278. 


422 


INDEX 


Public,  school,  9;  affairs,  discus- 
sion of,  233;  charity,  354. 
Punishment  of  pirates,  128. 

Qualifications,  for  freeman,  15; 
for  voting,  16;  property,  46;  for 
Representative,  64;  for  Presi- 
dent, 153. 

Quarter  Sessions,  8. 

Quorum,  81. 

Randolph  on  executive,  146. 

Real  property,  344. 

Rebellion  in  Philippines,  273. 

Record,  Congressional,  93. 

Regulation  of  commerce,  113. 

Religious,  freedom,  19;  Hberty, 
239. 

Removals  from  office,  170. 

Representation,  59;  of  States, 
53. 

Representatives,  House  of,  60; 
number  and  apportionment  of, 
61;  quahfications  of,  64;  of 
States  in  Senate,  71. 

Reputation  of  other  states,  367. 

Resolutions,  joint  and  concurrent, 
98. 

Responsibility,  ministerial,  85. 

Restrictions,  on  economic  freedom, 
24;  on  manufactures,  25;  on 
Congress,  143;  on  State  legis- 
latures, 295. 

Revenues,  43;  use  of,  108;  Federal, 
110. 

Reviews,  233. 

Revolution,  "Right"  of,  32;  dura- 
tion of  American,  36. 

Revolutionary  action,  28;  govern- 
ment, 29. 

Rider,  97. 

"Right"  of  Revolution,  32. 


Right  to  vote,  234-236. 

Rights, of  people,  16;  political,  117; 

of  man,  221;  of  community,  226, 

227. 
Roads,  post,  125. 
Royal  province,  19. 
Rules,  House  Committee  on,  92; 

suspension  of,  98. 
Russia  ceded  Alaska,  164. 

Salary  of  President,  153. 

Sale,  contract  of,  348. 

San  Lorenze  el  Real,  Treaty  of, 
363. 

Schools  and  their  organization, 
327. 

Secession,  32. 

Secretary,  of  State,  180;  of  War, 
273. 

Sedition  Laws,  140. 

Selectmen,  7,  309. 

Self-government,  9,  21. 

Self-preservation,  360. 

Senate,  7;  in  State,  46;  special  pur- 
poses of,  71;  corruption  in,  73; 
president  of,  83;  committees,  89; 
in  treaty-making,  158;  attitude 
toward  presidential  appoint- 
ments, 168. 

Senators,  number  of,  72;  classifica- 
tion of,  72;  qualifications  of,  73; 
election  of,  73;  project  for  popu- 
lar election  of,  75. 

SerA-ant,  330;  hired,  331;  tenure  of 
position,  331. 

Service,  civil,  173. 

Sessions  of  Congress,  76,  77. 

Sheriff,  6,  7,  9,  11,  12. 

Ship-building  in  New  England, 
25. 

Shire,  in  England,  8;  in  Virginia, 
10;  officers  of,  10. 


INDEX 


423 


Slave,  as  member  of  family,  330; 
under  Louisiana  civil  code,  244. 
Slavery,   and   representation,  63, 
244;    legislation    on,    245-247; 
and  Texas,  265. 
Slaves,  importation  of,  143. 
Soldiers,  quartering  of,  240. 
South  America,  2. 
Southern  colonies,  10. 
Sovereign,  new,  in  colonies,  36. 
Spaniards  and  Indians,  2. 
Spanish  and  English  colonial  sys- 
tems contrasted,  2. 
Speaker,  86,  87;  salary  of,  83. 
Speech,  freedom  of,  231. 
"Spoils  system,"  171. 
Stamp  tax,  23. 

State,  after  the  Revolution,  44; 
governments  reformed,  44;  citi- 
zenship, 120;     Department  of, 
179;  courts,  power  of,  196;  ad- 
mission of  a,  260;    from  Terri- 
tory, 261;  its  decline  in  impor- 
tance, 282;   its  functions,  282- 
285;  restrictions  on  the  power  of 
the,  283;  constitution,  formation 
of,  287;  constitutions,  286-290, 
292;  legislatures,  294;  taxation, 
297. 
States,  sovereign,  equality  of,  359. 
Statute  and  treaty,  161. 
Steering  committee,  89. 
Strict  construction  party,  139- 
Suffrage,  16. 
Supremacy  of  King,  3. 
Supreme  Court,  127;  decisions  of, 
197,    199;    original    jurisdiction 
of,  198;  appellate  jurisdiction  of, 
198;  appeal  to,  from  Philippines, 
199,  275;  sessions  of,  199:  of  the 
Philippine  Islands,  275. 
Swedish  Parliament,  60. 


Tax,  direct,  143. 

Taxation,  in  colonies,  20,  23,  104; 
equality  and  uniformity  of,  106; 
of  governmental  means,  107; 
purposes  of,  108. 

Taxes,  21;  in  colonies,  5;  county, 
11;  direct,  63,  105,  109;  classes 
of,  105;  on  imports,  108,  110; 
purposes  of,  109;  Federal,  109. 

Tenure-of-office  Bill,  170. 

Term  of  President,  154. 

Territorial  delegates,  80. 

Territories,  status  of,  254-257;  or- 
ganization of,  257;  institutions 
of,  259;  power  of  Congress  over, 
259;  changed  into  States,  261. 

Territory,  national,  362. 

Texas,  98;  annexed,  164;  history 
of,  262;  made  a  State,  263. 

Tie  vote,  100. 

Tilden,  presidential  candidate, 
152. 

Timber  Culture  Act,  343. 

Token  coin,  123. 

Toleration,  religious,  20. 

Town,  meeting,  6,  7;  affairs,  7; 
in  New  York,  15;  government, 
308,  309;  phases  of  history  of 
the,  310. 

Township,  9;  in  New  England,  6; 
divisions  of  the,  317. 

Trade,  40;  English  and  Spanish, 
2;  restricted  to  England,  25. 

Trading  companies,  286. 

"Trained  bands,"  12. 

Trea-son,  137,  353;  punishment  for, 
137. 

Treasury,  notes,  123;  Department 
of,  ISO;  officers  of,  181. 

Treaties,  367;  and  the  Constitu- 
tion, 160;  and  acts  of  Congress, 
161;  of  annexation.  163-165. 


424 


INDEX 


Treaty,  of  peace,  1783, 36;  of  Paris, 
1856,  131;  Gadsden,  164;  of  Gua- 
dalupe -  Hidalgo,  164;  of  Paris, 
272. 

Treaty-making  power,  158,  339. 

Trial  by  jury,  18,  24. 

Troops  against  French  and  In- 
dians, 22. 

Truths,  self-evident,  in  Declara- 
tion of  Independence,  34. 

Union,  21,  28,  31. 

Urban  and  country  population  in 

United  States,  318,  note. 
Utterances,  privileged,  232;  with 

conditional  privilege,  233. 

Vacancies  in  representation,  67. 

Vestry,  313. 

Veto,  presidential,  191;  right  to, 
234. 

Vice-President,  86,  100;  election 
of,  148,  155. 

Virginia,  government  of,  18;  Res- 
olutions, 141. 

Voting,  privilege  of,  15;  in  New 
England  colonies,  15;  in  Con- 
tinental Congress,  29;  under 
Articles   of  Confederation,   45; 


in  Congress,  98;  in  Territories, 
259. 

War,  losses,  112;  declaration  of,  by 
Congress,  128;  without  formal 
declaration,  129;  with  Mexico, 
129,  264;  in  the  Philippines,  129; 
with  Spain,  129;  in  China,  129; 
of  1812,  129;  Department  of, 
182. 

Warrant,  242;  general,  243. 

Washington,  28;  in  the  Conven- 
tion of  1787,  51;  President,  150; 
on  Jay's  treaty,  162. 

Water  rights,  344. 

Weakness,  of  Articles  of  Confeder- 
ation, 43;  of  general  govern- 
ment, 47,  48. 

Western,  lands  ceded,  249-252; 
States,  local  government  in,  315, 
316. 

West  India  Company,  14,  311. 

Whisky  Insurrection,  226. 

Wilkes's  case,  243. 

Wilkinson,  General,  226. 

Witnesses,  352. 

Woman  suffrage,  333. 

Yeas  and  nays,  98. 


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